'A.>^.» 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


^^ji^ 


^4 


A 


•^^^V^ 


%g 


1.0 


I.I 


■^  ^    i2.2 


us 


■  40 


2.0 


I 


L25  1  ,.4 

^ 

•4 6"     ~ 

> 

J% 


/ 


V 


Photographic 

Sciences 
Corporation 


•N^ 


.^« 


;\ 


23  WEST  MAIN  STRUT 

WIftSTIR.N.Y.  14StO 

(716)173-4503 


CIHM/ICMH 

Microfiche 

Series. 


CIHM/ICMH 
Collection  de 
microfiches. 


Canadian  Institute  for  Historical  Microreproductions  /  Institut  Canadian  de  microreproductions  historiques 


Technical  and  Bibliographic  Notes/Notes  techniques  et  bibliographiques 


The  Institute  has  attempted  to  obtain  the  best 
original  copy  available  for  filming.  Features  of  this 
copy  which  may  be  bibliographically  unique, 
which  may  alter  any  of  the  images  in  the 
reproduction,  or  which  may  significantly  change 
the  usual  method  of  filming,  are  checlted  below. 


D 


D 
D 


□ 


E 


Coloured  covers/ 
Couverture  de  couleur 


I      I    Covers  damaged/ 


Couverture  endommag^e 

Covers  restored  and/or  laminated/ 
Couverture  restaur^)  et/ou  pellicul6e 

Cover  title  missing/ 

Le  titre  de  couverture  manque 

Coloured  maps/ 

Cartes  giographiques  en  couleur 


□    Coloured  inic  (i.e.  other  than  blue  or  black)/ 
Encre  de  couleur  (i.e.  autre  que  bleue  ou  noire) 

I      I    Coloured  plates  and/or  illustrations/ 


Planches  et/ou  illustrations  en  couleur 


Bound  with  other  material/ 
Reiii  avec  d'autres  documents 


Tight  binding  may  cause  shadows  or  distortion 
along  interior  margin/ 

La  re  liure  serr^e  peut  causer  de  I'ombre  ou  de  la 
distortion  le  long  de  la  marge  intArieure 

Blank  leaves  added  during  restoration  may 
appear  within  the  text.  Whenever  possible,  these 
have  been  omitted  from  filming/ 
II  se  peut  que  certaines  pages  blanches  ajout^es 
lors  d'une  restauration  apparaissent  dans  le  texte, 
mais,  lorsque  cela  6tait  possible,  ces  pages  n'ont 
pas  6tA  f ilmies. 


L'Institut  a  microfilm^  le  meilleur  exemplaire 
qu'il  lui  a  M  possible  de  se  procurer.  Les  ddtaiis 
de  cet  exemplaire  qui  sont  peut-dtre  uniques  du 
point  de  vue  bibliographique,  qui  peuvent  modifier 
une  image  reproduite,  ou  qui  peuvent  exiger  une 
modification  dans  la  methods  normale  de  filmage 
sont  indiqufo  ci-dessous. 


n 


Additional  comments:/ 
Commentaires  suppi6mentaires: 


Coloured  pages/ 


Pages  de  couleur 

Pages  damaged/ 
Pages  endommag^es 

Pages  restored  and/oi 

Pages  restauries  et/ou  pellicuides 

0    Pages  discoloured,  stained  or  foxed/ 
Pages  ddcolories,  tachettes  ou  piqu6es 


I      I    Pages  damaged/ 

I      I    Pages  restored  and/or  laminated/ 


□    Pages  detached/ 
Pages  d^tachies 

0Showthrough/ 
Transparence 

I      I    Quality  of  print  varies/ 


D 


Varioui  pagingt. 


Quality  in^gaie  de  I'impression 

Includes  supplementary  material/ 
Comprend  du  materiel  suppKmentaire 

Only  edition  available/ 
Seuie  Edition  disponible 


Pages  wholly  or  partially  obscured  by  errata 
slips,  tissues,  etc.,  have  been  ref limed  to 
ensure  the  best  possible  image/ 
Les  pages  totalement  ou  partiellement 
obscurcies  par  un  feuillet  d'errata,  une  pelure, 
etc.,  ont  M  fiim^es  A  nouveau  de  fapon  A 
obtenir  la  meilleure  image  possible. 


This  item  Is  filmed  at  the  reduction  ratio  checked  below/ 

Ce  document  est  film*  au  taux  de  rMuction  indiquA  ci-dessous. 

10X  14X  18X  22X 


12X 


16X 


20X 


26X 


30X 


24X 


2SX 


32X 


e 

Stalls 
s  du 
lodifier 
r  une 
Image 


The  copy  filmed  here  has  been  reproduced  thanks 
to  the  generosity  of: 

University  of  Windsor 
Law  Library 

The  images  appearing  here  are  the  best  quality 
possible  considering  the  condition  and  legibility 
of  the  original  copy  and  in  Iceeping  with  the 
filming  contract  specifications. 


L'exemplaire  fiimi  fut  reproduit  grfice  d  la 
ginArositt  de: 

University  of  Windsor 
Law  Library 

Les  images  suivantes  ont  6t6  reproduites  avec  ie 
plus  grand  soin.  compte  tenu  de  la  condition  et 
de  la  nettetA  de  rexemplaire  fiimd,  et  en 
conformity  avec  les  conditions  du  contrat  de 
filmage. 


IS 


Original  copies  in  printed  paper  covers  are  filmed 
beginning  with  the  front  cover  and  ending  on 
the  last  page  with  a  printed  or  illustrated  impres- 
sion, or  the  back  cover  when  appropriate.  All 
other  original  copies  are  filmed  beginning  on  the 
first  page  with  a  printed  or  illustrated  impres- 
sion, and  ending  on  the  last  page  with  a  printed 
or  illustrated  impression. 


The  last  recorded  frame  on  each  microfiche 
shall  contain  the  symbol  — ^>  (meaning  "CON- 
TINUED"), or  the  symbol  V  (meaning  "END"), 
whichever  applies. 


Les  exemplaires  originaux  dont  la  couverture  en 
papier  est  imprimte  sont  filmte  en  commengant 
par  Ie  premier  plat  et  en  terminant  soit  par  la 
dernidre  page  qui  comporte  une  empreinte 
d'impression  ou  d'illustration,  soit  par  Ie  second 
plat,  salon  Ie  cas.  Tous  les  autres  exemplaires 
originaux  sont  film6s  en  commenpant  par  la 
premidre  page  qui  comporte  une  empreinte 
d'impression  ou  d'illustration  et  en  terminant  par 
la  dernidre  page  qui  comporte  une  telle 
empreinte. 

Un  des  symboles  suivants  apparattra  sur  la 
dernidre  image  de  cheque  microfiche,  selon  Ie 
cas:  Ie  symbols  —►  signifie  "A  SUIVRE",  Ie 
symbols  V  signifie  "FIN". 


Maps,  plates,  charts,  etc..  may  be  filmed  et 
different  reduction  ratios.  Those  too  large  to  be 
entirely  included  in  one  exposure  are  filmed 
beginning  in  the  upper  left  hand  corner,  left  to 
right  and  top  to  bottom,  as  many  frames  as 
required.  The  following  diagrams  illustrate  the 
method: 


Les  cartes,  planches,  tableaux,  etc.,  peuvent  Atre 
film^s  d  des  taux  de  reduction  diffirents. 
Lorsque  Ie  document  est  trop  grand  pour  Atre 
reproduit  en  un  seul  clich6,  il  est  fiimA  d  partir 
de  Tangle  sup6rieur  gauche,  de  gauche  A  droite. 
et  de  haut  en  bas,  en  prenant  Ie  nombre 
d'images  nicesssire.  Les  diagrammes  suivants 
illustrent  la  m^thode. 


Brrata 
to 


pelure, 
in  A 


n 

32X 


1 

2 

3 

t 

2 

3 

4 

5 

6 

■ 

■■■■■nniilWrinBBWMIMMtWWWWIWIMIIIMMWMIIIMII.IIIWIJIWIIIWI 


n 


i 


A  R  G  r  M  i:  N  T  S 


IX  r.Kir  \LK  or 


T  H  E    U  1\  I T  i:  ] )    S  T  A  T  E  S , 


wnir 


SLPpi.i:Mi:N'r  axi>  appeni>ix. 


ruiosKNTij)  To  Tin; 


COMMISSIOXERS  l!NJ)HII  TUB  TREATY 


RETWKKN 


Cltl- AT  BRITAIN  AND  THE  UNITED  STATES, 


FOR    THK 


FFXAT.   SKTTLlvUEXT   OF   TJIK   CLAIMS 


OF    THE 


HDDSON'S  BAY  AND  PUUET'S  SOUND  AGRICULTDRAl  COMPANIES. 


C.  Gushing,  Counsel. 


I 


WASIIIXCJTON    CITY: 

M'CII-I,  >V;    WITIII-UOW,   POINTERS  AND  HTEUEOTYPKRa. 

1868. 


:\IEMORIAL  OF  THE  HUDSON'S  BAY  COMPANY. 


Brithh  and  Amcvionn  Joint  Cowmhs^ion  on  the  ITufhons  Bay 
and  ruiiet's  Sound  A(jrk'ultural  CompanicH    Claims. 


To  the  Honorable  the  Commissioners: 

The  Governor  and  Conipai.  ^  of  Adventurers  of  Enrrland 
trading  into  Iludsoji's  ]i;iy,  commonly  called  tlic  Hudson's 
Bay  Compmiy,  claimants,  submit  the  following  memorial  and 
statement  of  tlioir  claims  upon  the  United  States  ;  and  for 
facts  and  considerations  in  support  of  such  claims  respectfully 
declare  : 

That,  in  the  year  1840,  and  for  a  great  number  of  years  pre- 
vious thereto,  the  Hudson's  ]]ay  Company  were  in  the  free  and 
full  enjoyment,  for  their  own  exclusive  use  and  benefit,  of  cer- 
tain rights,  possessions,  and  property  of  great  value,  within 
and  upon  the  territory  of  the  northwest  coast  of  America 
lying  westward  of  the  Rocky  Mountains  and  south  of  the  4Dth 
parallel  of  north  latitude;  such  rights  consisting  as  well  in 
extensive  and  valuable  tracts  of  land,  whereupon  numerous 
costly  buildings  and  enclosures  had  been  erected  and  other 
improvements  had  been  made,  and  then  subsisted,  as  of  a  right 
of  trade  which  was  virtually  exclusive,  and  the  right  of  the 
free  and  open  navigation  of  the  river  Columbia  within  the 
said  territory. 

That  the  rights  possessions,  and  property  thus  held  and  en- 
joyed by  the  Hudson's  Bay  Company,  had  been  acquired  while 
tlie  said  territory  was  in  the  ostensible  possession  and  under 
the  snvoreignty  and  government  of  the  Crown  of  Great  Britain, 
and  the  Compiiny  held  and  enjoved  the  same  with  the  knowleiUc 
and  consent,  and  under  recognitions,  both  express  and  implied, 
of  the  Crown  of  Great  Britain,  and  by  persons  acting  under  its 
authority. 

That,  by  the  treaty  C(  ucluded  between  Great  Britain  and  the 


aimm 


nBsssn 


f< 


United  States  of  America  on  the  1 ')tli  day  of  June,  1S4<I,  while 
the  Iluilson's  llay  Company  wore  in  tlie  full  and  free  possession 
and  enjoyment  of  tlieir  said  riixlits,  it  was  in  effect  declared  to 
be  desirable,  for  the  future  welfare  of  both  countries,  that  the 
state  of  doubt  and  uncertainty  which  had  theretofore  prevailed 
respecting  the  sovereignty  and  rrovornment  of  the  territory  on 
the  northwest  coast  of  America,  lying  westward  of  the  Ivocky 
Mountains,  should  be  finally  terminated  by  an  amicable  com- 
promise of  the  rights  mutually  asserted  l>y  the  two  parties, 
upon  such  terms  of  settlement  as  might  be  agreed  upon  ;  and 
thereupon,  by  article  I,  of  the  sai<l  treaty,  the  line  of  boundary 
to  be  thereafier  observeil  between  the  territories  of  Great 
Britain  and  those  of  tiie  United  States  of  America,  then  in  ques- 
tion,  was  established  by  mutual  compromise  and  agreement. 

That,  by  article  HI,  of  the  said  treaty,  it  was  provided  :  That 
in  the  future  appropriation  of  the  territory  south  of  the  40th 
parallel  of  north  latitude,  as  provided  in  article  I,  of  the  sai<l 
treaty,  the  possessory  rights  of  the  Hudson's  Bay  Company,  and 
of  all  JJritish  subjects  who  might  be  already  in  the  occu))ation  of 
land  or  other  property  lawfully  acquired  within  the  said  terri- 
tory, should  be  respected  ;  and  by  article  II,  of  the  same  treaty, 
it  was  further  provided,  that  from  the  point  at  which  the  40th. 
parallel  of  north  latitude  should  be  found  to  intersect  the  great 
northern  branch  of  the  Columbia  river,  the  navi'fation  of  the 
said  branch  should  be  free  and  open  to  the  Hudson's  Bay  Com- 
pany, and  to  all  British  subjects  trading  with  the  same,  to  the 
point  where  the  said  branch  meets  the  main  stream  of  the  Colum- 
bia, and  thence  down  the  said  main  stream  to  the  ocean,  with  free 
access  into  and  through  the  said  river  or  rivers,  it  being  under- 
stood that  all  the  usual  portages  along  the  line  thus  described 
should  in  like  manner  be  free  and  open. 

That,  under  the  settlement  of  the  boundary  line  agreed  u[)on 
by  the  said  treaty,  and  defined  by  the  first  article  thereof,  the 
said  territory,  whereof  the  Hudson's  Bay  Company  then  had 
the  actual  and  exclusive  control,  possession,  use,  and  enjoy- 
ment as  aforesaid,  fell  within  and  under  the  sovereignty  and 
Government  of  the  United  States  ;  and,  under  a  just  construc- 
tion of  the  said  treaty,  and  of  the  obligation  therein  assumeti, 


i 


r> 


S40,  while 

possession 
ocI.'ivcmI  to 
;,  that  the 
prevailed 
rritory  on 
.lie  Uocky 
jable  com- 
o   parties, 
ipon  ;   and 
boun<lary 
of   Great 
en  in  ques- 
reement. 
ded:   That 
f  the  40th 
d'  the  said 
npany,  and 
3upation  of 
t:aid  Terri- 
imc  treaty, 
;h  the  40th. 
;t  the  i^reat 
tion  of  the 
5  Bay  Coni- 
ame,  to  the 
thcColum- 
n,  with  free 
eing  und or- 
is described 

igreed  upon 
thereof,  the 
y  then  liad 
and  en joy - 
•eignty  and 
St  construe- 
in  assumed, 


that  the  possessory  rights  of  the  Hudson's  Uuy  (Joinpany 
should  be  respected  according  to  the  true  intent  and  meaiiinr-' 
of  tiic  same,  the  United  States  became  and  were  bound  to  up- 
hold and  maintain  the  said  Company  in  the  free,  nndisturlied, 
and  continual  occupancy,  use,  and  enjoyment  of  ail  the  rights 
possessions,  and  property  then  by  them  possessed  and  held, 
and  to  j)rotect  and  indemnify  them  from  aggression  ami  in- 
juries, by  or  through  any  person  acting,  or  elainiing  to  act, 
under  the  authority  or  the  laws  of  the  United  States, 

That  the  rights  Avhieh  the  United  States  were  so  held  to  re- 
spect, and  in  the  enjoyment  of  which  they  were  bound  to  u]>- 
hold  and  maintain  the  (,'ompany,  consisted  of: 

Firxt.  The  free  and  undisturbed  possession,  use,  and  enjoy- 
Tnent  in  perpetuity,  as  owners  thereof,  of  all  the  ))Osts,  estal)- 
lishments,  farms,  and  lands  held  and  occupied  by  them  for 
purposes  of  culture  or  pasturage,  or  for  the  convenience  of 
trade,  with  all  the  buildings  and  other  improvements  there- 
upon. 

Sceoiullii.  The  right  of  trade  in  furs,  peltries,  and  other  ar- 
ticles, within  and  upon  the  whole  of  the  said  territory,  and  the 
right   of  cutting   timber  tiiereupon   for  sale  and   exportation. 

Thu'iJIji.  The  right  to  the  free  and  open  navinration  of  the 
Columbia  river,  from  the  point  at  which  the  40tli  j);irallel  of 
north  latitude  intersects  the  great  northern  branch  of  the  said 
river  down  to  the  ocean,  with  a  like  free  and  open  use  of  the 
portages  along  the  said  line. 

That  the  said  rights  have  not  been  respected  accordin"-  to 
the  terms  of  the  said  treaty  and  the  obligation  of  the  United 
States  resulting  therefrom;  hut,  on  the  contrary,  by  and 
through  the  aggressions  and  proceedings  of  persons  aetini:,  or 
claiming  to  act,  under  the  authority  of  the  (jJovernment,  or  of 
the  laws  of  the  I  nited  States,  have  been  violated  and  restricted, 
and  in  great  part  extinguished  and  destroyed;  and  the  Com- 
pany, by  reas'^m  of  the  said  aggressions  and  proceedings,  have 
been  compelled  in  many  eases  to  relinquish  the  same. 

That,  by  the  treaty  concluded  on  the  Ust  day  of  July,  l-SfJ.'] 
it  was    agreed  that    all  questions   between  the    United    States 
authorities  on  the  one  hand,  and  the  Hudson's  ]}ay  Cornnanv 

V  1  ^ 


■HWHU 


JUMBHWWHmBHHBH 


0 

on  the  other,  with  respect  to  the  possessory  rights  and  claims 
of  the  latter,  should  be  settled  hy  tlio  transfer  of  those  ri;i;1it3 
and  claims  to  tlie(irovern!nent  of  the  I  iiitcd  States  for  uu  ade- 
quate money  consideration. 

And  the  claimants  now  submit  a  d(>tailed  statement  and  ^  ilu- 
ation  of  the  said  rii^hts,  severally,  under  their  distinct  heads 
or  classes;  and  of  the  claim  of  the  ir-idson's  Hay  (yom))any 
under  and  by  virtue  of  tiie  said  treaty  and  of  tho  premises 
herein  set  forth  : 

1.  T-AND3  AND  TRADTXC.   KSTAr.TJSMKXT55. 


1 


The  forts,  posts,  establishinonts,  farms,  pastures,  and  other 
lands,  witli  the  buildint^s  and  improvements  therouf)on,  held 
and  possessed  within  the  said  territory  by  the  Hudson's  ]>ay 
C(tmpanj5^,  for  their  own  sob;  use  and  benefit,  at  the  time  of 
the  said  treaty  of  the  l")th  June,  1840,  and  for  a  long  time 
before,  which  had,  in  some  instances,  been  acquired  from  prior 
occupants,  and,  in  others,  had  been  erectcMl  and  made,  and 
orii^inally  settled  and  oecupieil,  by  the  Company,  were  as 
follows  : 

The  post  of  Vancouver,  so  called,  C(nisistin<i;  of  a  sto(d<aded 
fort,  with  dwelling-houses,  store-houses,  school-houses,  houses 
for  servants,  shops,  barns,  and  other  outbuiblings,  with  a  stock- 
ade and  bastions,  erected  at  great  cost,  and  of  the  value  of  (ifty- 
five  thousand  poundssterling,  (  i;")r),000;)  other  dwelling-houses 
and  granaries,  dairies  barns,  stables,  and  farm-buildings  appur- 
tenant to  the  said  post  for  the  purposes  of  (arming  and  trade, 
built  at  various  points  near  to  the  main  ])ost  at  Vancouver, and  on 
Sauve's  island,  together  with  saw-mills  and  flouring-mills, forges, 
workshops,  and  store-houses,  all  erected  at  a  great  cost  at 
the  time,  and  of  the  value  of  I'orty-five  thousand  pounds  ster- 
ling, (€4'), 000;)  the  tract  of  land  occupied,  possessed,  and 
used  by  the  Company  for  its  |)OSt  at  Vancouver,  including  its 
stations,  enclosed  and  cultivated  fields,  and  th(;  j)asturage  for 
its  cattle,  horses,  and  sheep,  extending  in  front  along  the 
bank  of  the  Columbia  river  about  twenty-five  miles,  and  ba(d<- 
ward  from  the  said  river  about  ten  miles;   and  Menzios'  island, 


I      [\  I 


UBnDMB|UailH 


and  claims 

hoso  vi<i;1it3 
for  nil  adc- 

t  and  ^  ilu- 

iiict  he. ids 

(yojujiany 

0  premises 


and  other 
iipon,  licld 
Ison's  ]>ay 
he  time  of 
lon<^  time 
from  prior 
made,  and 
y,   were  as 

stockaded 
ises,  houses 
til  a  stock- 
lue  of  (ifty- 
linii-housos 
ings  appur- 

and  trade, 
iver,and  ou 
lills, forges, 
L'at  cost  at 
ounds  ster- 
iessed,  and 
(duding  its 
stitrage  for 

along  the 
,  and  I)a(dv- 
ies'  island, 


so-called,  occupied  and  used  for  pasturage;  these  tracts  of 
land,  with  the  agricultural  improvements  made  thereupon,  at 
a  great  cost,  were  at  the  time  of  the  said  treaty,  of  the  value 
of  seventy-live  thousand  pounds  sterling,  (  C7.'».0(l(l. ) 

'^riie  said  several  sums,  making  together  the  entire  sutn  of 
one  hundred  and  seventy-five  thousand  pounds  sterlin*'-, 
(i;l7o,()00,)  equal  to  eight  hundred  and  lifty-onc  thousand  six 
hundred  and  sixty-six  dollars  and  sixty-seven  cents,  (iircSr)!,- 
»j»i»)  ()7,)  the  claimants  aver  to  bo  the  value  of  the  fort,  build- 
ings, lands,  and  establishment,  at  and  near  Vancouver  and  on 
Sauve's  island,  which  they  are  entitled  to  claim  and  receive  for 
the  same. 

A  large  portion  of  the  land  thus  occupied,  possessed,  and 
used,  has,  since  the  loth  day  of  June,  l.S4(;,  been  taken  from 
the  possession  of  the  Company  by  American  settlers  claiming 
under  the  land-laws  of  the  United  States,  and  the  Company 
was  dispossessed  of  the  fort  and  establishmetit  at  Vancouver, 
and  the  land  near  thereto,  by  the  orders  of  the  military  ofiicers 
of  the  United  States,  in  the  year  18G0. 

The  post  at  Cham ro kg,  consisting  of  one  dwelling-house,  one 
granary,  and  outbuildings,  all  of  the  value  of  three  thousand 
pounds  sterling,  (i;;J,OUO;)  and  of  the  enclosed  land  of  the 
value  of  two  hundred  pounds  sterling,  (£200;)  and,  in  addi- 
tion, certain  town  lots  in  the  town  of  Champoeg,  purchased  of 
American  settlers,  of  the  value  of  two  hundred  pounds  ster- 
ling, (£200;)  making  together  the  entire  sum  of  three  thou- 
sand four  hundred  pounds  sterling,  (£0,400,)  e(iual  to  sixteen 
thousand  five  hundred  and  forty-six  dollars  and  sixty-seven 
cents,  (Sl(j,o4<J  07.) 

The  post  at  the  mouth  of  the  Cowlitz  uiveu,  consisting  of 
dwelling-house,  granaries,  and  outbuildings,  erected  by  the 
Company,  of  the  value  of  four  hundred  pounds  sterling,  (£4<)0;) 
and  the  land  occupied  and  used  by  them,  of  the  value  of  one 
hundred  pounds  sterling,  (i;lO0  ;)  making  together  the  entire 
sum  of  five  hundred  pounds  sterling,  (£500,)  equal  to  two 
thousand  four  hundred  and  thirty-three  dollars  and  thirty- 
three  cents,  ($2,438  33.) 

The  post  at  Fort  George,  commonly  called  Astoria,  con- 


8 


'  i 


I    '' 


'I 
if 


felstinf^  of  (hvoH'mg-liousos,  storo-Iiouses,  ami  OMtl)uil(liiia;s,  ac- 
quircil  by  tlic  (.)onip;iiiy  from  tlio  prioi*  occupants,  of  tlio  cost 
and  value  of  scvon  IiuiuIihmI  and  fifty  pounds  sterling,  (€7o0;) 
und  two  acres  of  land  whereupon  the  said  post  is  built,  and 
thereto  appertaining,  possessed  and  used  by  the  (.'onipany,  and 
be'.ig  of  the  value  uf  one  hundred  pounds  sterling,  (Xl<)();) 
makiuL!;  toi^ether  the  entire  sum  of  ei;:'iit  humlred  and  fifty 
pounds  sterling,  (  €S50,j  equal  to  four  thousand  one  hundred 
and  thirty-six  dollars  and  sixty-seven  cents,  ($4, loll  (37.) 

This  post  was  taken  possession  of  in  1849-50  by  the  officers 
of  the  Uniteil  States, 

The  postal  Capk  Disappointment,  consisting  of  a  dwelling- 
house  and  store  erected  by  the  Company,  of  the  value  of  ono 
thousand  pounds  sterling,  (.€1,000;)  and  the  land  appertain- 
ing to  the  post  occupied,  used,  and  possessed  by  them,  being 
one  mile  S((uare,  and  of  the  value  of  two  thousand  pounds 
sterling,  (X2,000  ;)  making  together  the  entire  sum  of  tnree 
thousand  pounds  sterling,  (.€3,000,)  equal  to  fou^  ;een  thou- 
sand six  hundred  dollars,  ($14,000.) 

The  last-mentioned  land,  or  a  portion  of  it,  since  the  date 
of  the  said  treaty,  was  taken  possession  of  by  the  officers  of 
the  Uu    ed  States  for  a  light-house  or  other  public  purpose. 

The  post  at  Chinook,  or  Pillar  Kock,  a  fishing  station,  con- 
sisting of  a  curing-house  erected  by  the  Company,  of  the  cost 
and  value  of  two  hundred  pounds  sterling,  ()iil200;)  and  the 
land  used  and  occupied  by  them  for  said  station,  of  the  value 
of  one  hundred  pounds  sterling,  (=C100;)  making  together  the 
entire  sum  of  three  hundred  pounds  sterling,  (£'MH),)  equal  to 
one  thousand  four  hundred  and  sixty  dollars,  ($1,4(30.) 

The  post  at  UaipQ(JA,  consisting  of  dwelling-house,  barn, 
stables,  and  outbuildings,  erected  by  the  Company,  of  the  cost 
and  value  of  three  thousand  pounds  sterling,  (i^S, 000;)  and  the 
land  used  and  occupied  by  them  for  farms  and  pasturage,  being 
a  mile  square  in  extent,  a  portion  of  which  was  fenced  and 
cultivated,  all  of  the  value  of  two  thousand  pounds  sterling, 
{Jj'2,000;)  making  together  the  entire  sum  of  five  thousand 
pounds  sterling,  (iiO,000;)  equal  to  twenty-four  thousand  three 


■1i 


9 


liMiiijis,  ac- 
of  the  cost 
iiig,  (  CToO;) 
s  built,  ami 
mipany.  and 
iiig,  (il<M);) 
cd  and  fifty 
)iic  hundred 

i;'.i;  07.) 

f  the  ofViccrs 

fa  dwcUing- 
raluo  of  ono 
d  appcrtain- 
tlicm,  being 
sand  pounds 
mm  of  tnvoe 
Uiieeu   thou- 

nce  tho  date 
he  olTiccrs  of 
ic  purpose, 
station,  con- 
y,  of  the  cost 
00:)  and  tho 
,  of  tho  value 
;  together  tho 
500,)  equal  to 
l,4G0.) 

;-house,  barn, 
y,  of  the  cost 
000;)  and  tho 
sturage,  being 
LS  fenced  and 
unds  sterling, 
five  thousand 
housand  three 


ol   th 


liuudrc'l     and     lliirty-tliroe     «loll;irs    jiud    tliirtv-tlii-(>o    cents, 
/<.)  I  •'•1'  •>•»  , 

(^"^-4.  •>■)■>   -fj.  I 

The  wiiole  of  this  l.isl-inentioned  land  is  ikav  occupied  by 
an  Aniri'iciiii  setrh.T,  elaiming  to  hold  the  sauuj  under  tho  laws 
'lilted  St;it(.'S. 
The  post  of  Xi:/,-l*i;ii('K,s,  eommonly  Ciilled  \V;ill;i-\Valln, 
consisting  of  two  dwelling-houses  and  servants'  houses,  store- 
houses, ami  other  buildings  and  outbuildings,  walls  and  bas- 
tions, nil  built  Iiy  tlu;  ('onipaiiy.  of  ailobe  brick,  and  of  tho 
cost  and  value  of  three  tlioii>and  two  hundred  nouinls  sterliti". 
( £-J,:^Oi) ;  I  the  land  on  the  Columbia  river  oceu|)ied  and  used 
as  belonging  to  the  -aid  post,  and  also  the  land  along  tho 
bank  of  the  said  river  \\>r.]  fur  the  lauding  of  the  Company, 
of  the  value  of  teu  tliousand  poundi  sterling,  (  t:li»,(ji)0  ;)  tho 
lau'U  siin'oiiiiding  tli  fort,  used  as  pasturage,  of  the  value  of 
two  ihousiind  ])o'imus  sterling,  (C^.OOO:)  the  farm  near  tho 
])e,-it,  beii'.g  of  some  tliivty  'cres,  moi'c  or  less,  in  extent,  of 
the  value  of  one  tlious'ind  live  hundred  pounds  sterliii", 
(€1,.0U1);)  making  togcthe;  the  eritiri!  sum  of  sixteen  thou- 
sand seven  bun  li'cd  pounds  sterling,  ( .t'lG.TOO;)  equal  to  eighty- 
one  thousand  two  hun<lred  and  seventy-three  dollars  and 
tbirty-tiiree  cents,  (.'ii><Sl,278  oo.) 

This  post  and  the  lands  were  abandoned  by  the  servants  of 
the  Company  binder  the  orders  of  ihe  I'niteil  States  authori- 
ties ill  Is.jo. 

The  post  at  l<\)rt  Hall,  consisting  of  houses,  shops,  stores, 
mills,  aiid  outbuildings,  horse-parks  and  walls,  all  of  adobe 
brick,  and  of  the  value  of  throe  thousand  j)ounds  sterliii", 
(.£3,000;)  the  lands  (.'iiclosed  and  cultivated,  of  the  value  of 
one  thousand  pounds  sterling,  (  Cl.OOO;)  and  the  lands  occu- 
pied and  used  for  the  pasturage  of  horses  and  cattle,  of  <n'eat 
extent,  and  of  the  value  of  one  thousand  pounds  sterling, 
(£1,01)0;)  making  together  the  entire  sum  of  five  thousand 
pounds  sterling,  (.£.'), 0<>0;)  equal  to  twenty-four  thousand  three 
nundre<l    ant.    thirty-three     dollars     and     thirty-three    cents, 

This  post   was   necessarily   abandoned  by  the  Company  on 

•1  .M 


.    frr 


msnaammmamm 


}  Kl 


10 


I   \l 


•  i 
1 1 


i    f  i 


■    : 


^ 


account  of  hostilities  between  the  United  States  antl  the  In- 
dian tribes  in  18o(). 

The  post  at  IjOISi';,  consisting  of  houses  and  ouihouscs,  hnild- 
ings,  wall  and  bastions,  and  liorsc-itavks,  all  built  u?  adobo 
brick,  and  of  the  cost  and  value  of  one  thousand  five  hundred 
pounds  sterling,  (£l,r>00;)  about  three  miles  square  of  land 
around  the  post,  used  ainl  occupied  by  the  Company  for  iho 
pur))ose  of  agriculture  and  pasturiig(\  all  of  tlic  value  of  two 
thousand  pounds  sterling,  (C2, <)(•():)  making  together  the  en- 
tire sum  of  three  thousand  five  hundred  pounds  sterling, 
(^3,000;)  equal  to  seventeen  thousand  iind  thirty-tliree  dol- 
lars and  thirty-three  CL-nts,  (?^17.0o0  C-1.) 

This  post  was  necessarily  aba-nihjned  by  the  CoU)pany  in 
consequence  of  the  hostilities  between  the  United  States  and 
the  Indian  tribes  of  ISf'ji. 

The  post  at  Okanagax,  consisting  of  dweirmgdu)uses,  ser- 
vants' houses,  store-houses,  outbuildings,  all  of  ad)be,  stock- 
ade and  bastions,  erected  by  the  Company,  and  of  the  value 
of  two  thousand  five  hundred  pounds  sterli'  ••  ( l'2,oU(>;)  thirty 
acres  of  land  at  the  fort,  used,  occupied,  and  cultivated  by 
the  Company,  of  the  value  of  one  thousand  p(junds  sterling, 
(,£1,000;)  and  near  and  belonging  thereto,  othur  lands  for  tlie 
pasturage  of  herds  of  horses,  of  the  value  of  five  hundred 
pounds  sterling,  £500;)  making  tog(^ther  the  entire  sum  of 
four  thousand  ])Ounds  sterling,  ( C4, 000;)  equal  to  nineteen 
thousand  four  hundred  and  sixty-six  dollars  and  sixty-seven 
cents  (8lO,oOG  07.) 

The  post  at  CoLA'iLi;,  consisting  of  dwellingdiouses,  servants' 
houses,  shops,  stores,  outbuildings,  stables,  barns,  yards,  stock- 
ades and  bastions,  flouring-mills  and  appurtenances,  all  ei'ccted 
by  the  Company,  and  of  the  cost  and  value  of  ten  thousaiul 
pounds  sterling,  (£10,000;)  three  hundred  and  fifty  acres  of  hind 
occupied  and  used  and  cultivated  as  farm-land,  and  about  ji^e 
m.iles  scjuare  of  land  occupied  and  used  for  pastunige  of  their 
cattle  and  horses,  of  the  value  of  five  thousand  pounds  ster- 
ling. (£5,000;)  the  White  Mud  farm,  (ap))urtenant  to  this  j)o-t.) 
with  a  house,  barn  and  stable,  store  and  oulbuildings,  erected 
upon  it  by  the  Company,  of  the  cost  and  value  of  one  thou- 


s  I 


11 


anil  the  In- 

»uscs,  builtl- 
It  of  lulobo 
ivo  IuumUhmI 
Kive  of  laud 
d;iuv  for  llio 
,'aluc  of  two 
;tlicr  the  cn- 
iJs    stei'lin;,', 
y-lhrce   dol- 

Coinpany  in 
nl  Slates  and 

i<--l>()uscs,  sev- 
udtbo,  stock- 
of  the  value 
J.rxJO;)    thirty 
cultivated  by 
inids  stevlin,!!, 
lanil>  for  ilic 
five  hundred 
■  niiro  sum  of 
to  niueteeu 
A  sixty-seven 

uses,  servants' 
,,  yards,  stock- 
ces,  all  eroded 
ten   thousand 
ty  acres  of  laud 
•and  about  Ji^o 
turage  of  their 
,1   pounds  stcr- 
,it  to  this  post.) 
Mings,  erected 
0  ot  one  thou- 


?nnd  pounds  sterling:,  ( €1,000;)  the  land  used  and  occupied 
as  a  farm,  thirty  acres  of  extent,  and  of  the  value  of  five 
huinli'cd  pounds  stcrlin,Lr,  (€")0t):)  nialcin/jj  to^^i'liii-r  the  o'l- 
tire  sum  of  sixteen  thousand  five  liui.dred  [)0U:ids  sterlin.]:^, 
(ClOjtJ'tO;)  equal  to  eif^hty  thousand  three  hundred  dollars, 
(i?80,30O.) 

Till'  post  at  IvooTANAFs,  consi'^tin lc  of  houses  and  stores 
erected  by  the  Company,  of  the  co'^tand  value  of  five  hundred 
]")Ounds  sterling:,  f  l'^"*"*;)  the;  land  oecu])ied  and  used  for  tlic 
post,  ;ind  near  thereto,  of  small  extent,  of  tlie  value  of  five 
hundred  pminds  sterling,  (  t-lOO  ;  >  nnikinir  togethe!"  the  entire 
su.m  of  one  tiiousands  poumls  sterling,  (1^1,000:)  equal  to  four 
thousand  eight  liundrMl  and  sixty-six  dolhirs  and  sixty-seven 
cents,  (S4.8()(;  07.) 

Tlic  ))ost  at  l'r-AT-lli:Ans,  consisting  of  dwelling-houses  and 
stores,  anil  of  a  small  piece  of  land  enclosed  as  a  horse-yard,  of 
the  value  of  six  hundred  pounds  steidiog.  (4!i)0();)  equal  to  two 
thousand  nine  hundred  and  twenty  dollars,  (."^12,020.) 

All  tiiese  jiosts  were  established  and  maintained  for  the 
support  of  their  servants,  and  of  others  in  the  emjdoymetit; 
uf  oi-  trading  with  the  Company,  aiid  were  not.  only  iuilis- 
peiisable  fur  carrying  on  their  trade  in  tlie  country  south  of 
the -tiUh  parallel  of  north  latitude,  but  were  also  of  great 
value  for  the  suppoi't  of  tludr  posts  and  trade  in  the  country 
north  of  that  iiaralUd.  They  were  connected  with  and  de- 
pendent upon  ea(di  other,  and  were  of  gi'cater  value  to  the 
Company  when  used  together.  The  fariiis  and  pasture-lands 
were  also  of  LTreat  annual  value. 

It  may  bo  added,  that  the  discoveries  of  gold  and  other 
minei'als,  which  have  been  made  within  a  f(>\v  years  past  upon 
lands  ^ithin  the  territoi'v  occupied  by  the  Company,  prove 
their  value  to  lie  much  higher  than  any  estimate  whieh  coubl 
have  been  put  upon  them  before  their  general  mineral  wealth 
was  known  ;  and  although  it  is  not  intended  to  urge,  this  fact 
as  ;i  distii'.ct  ground  of  (d;iim,  yet  it  is  manifestly  fair  that  ic 
should  not  be  witliout  inlluonce  in  the  assessment  to  Im-  nnide 
!)y  the  Commissioners. 

The  Company  liavc  been,  as  beforo  stated,  deprived  of  tlio 


! 


fT 


V  [ 


^BBaaammmBmmmm 


12 


'A 


I*! 

I ; 


];, 


I 


I  ' 


possession  of  some  of  their  posts  and  fjinns  find  other  lands 
by  American  settlers  claiming  under  the  land-hnvs  of  the 
United  States;  of  some  by  tiio  action  of  tiie  oflicers  of  tlio 
United  States;  and  of  others  by  the  iio.stilities  between  tlio 
United  States  and  Indian  tribes  ;  Avhich  s;iid  tribes  had,  until 
the  treaty  of  the  loth  June,  18GG,  been  under  tlie  control  of 
and  at  peace  with  the  said  Company. 

The  privation  of  the  annual  profits  and  rents  of  these 
farms  and  lancb;,  and  the  occupation  of  thidr  posts,  and  the 
campellod  ai)andontnent  of  the  said  f)osts  ;ind  farms  and  lands, 
have  caused  to  the  Company  damaf^^e  and  loss  to  an  amount 
exceeding  fifry  thousand  pounds  sterling,  (i:">0,000.) 

The  value  of  the  several  forts,  posts,  establishments,  farms, 
pasturages  and  lands,  with  the  buildings  and  improvements 
thereon,  amounts  in  all  to  the  sum  of  two  hundred  and  thirty- 
five  thousand  three  hundred  and  fifty  pounds  sterling, 
(.£235,3r)0  ;)  making,  together  A\:itli  the  sum  of  fifty  thousand 
pounds  sterling  (.£50,000)  for  loss  sufi'ered  as  :-.tated,  the  entire 
sum  of  two  hundred  and  ci2;htv-five  thousand  tliroo  iiundred 
and  fifty  pounds  sterling,  (285, -joO;)  equal  to  one  million  three 
hundred  and  eigbtv-cight  thousand  seven  hundred  ami  three 
dollars  and  thirty-three  cents,  (1,388,708  So.) 

Which  the  Hudson's  Bay  Company  claim  and  are  entitled 
to  receive  from  the  United  States. 


\< 


11.    RIGHT  OF  TKADE. 

The  chief  business  of  the  Hudson's  Bay  Companj'  in  the 
year  184G,  and  for  a  great  number  of  years  before,  was,  and 
now  is,  the  trade  with  Indian  tribes  in  furs,  peltries,  and 
other  articles.  It  was  a  trade  of  great  n)agnitude,  carried  ou 
in  Oregon  over  a  wide  range  of  countr}',  and  involved  an  ex- 
tensive foreign  commerce.  Large  sums  of  moiicy  were  an- 
nually expended  in  it,  and  the  returns  were  highly  profitable 
ami  important  to  the  general  prosperity  of  the  Company. 

For  the  projjcr  and  beneficial  currying  on  of  that  trade,  the 
Company  required,  not  only  to  hold  and  possess  the  posts,  es- 
tablishments, farms,   and  other  lauds  already  described,  but 


mn 


13 


itlier  lands 
;iAv?;  of  tlie 
-er.s  of  tlic 
etwcon  the 
s  liiul,  until 
;  control  of 

ts  nf  tlii'so 
;ts,  llMil  the 
s  junl  hinds, 
an  iiniount 
0.) 

cuts,  farms, 
i|)rov(Miients 
1  and  thirty- 
ds  sterling, 
-[J  thousand 
m1,  the  entire 
reo  hundred 
million  three 
(1   and   three 

I  are  entitled 


ipany   in   the 
'ore,  Avas,  and 
peltries,  and 
Ic,  carried  ou 
v'olved  an    ex- 
11  ey   were   an- 
hly  profitable 
Coun)any. 
that  trade,  the 
5  the  posts,  cs- 
described,  but 


also  to  have  the  control,  possession,  and  use  of  extensive  tracts 
of  country  ;  and  tlu^y  had  in  fact,  at  aiid  iKdurt;  the  date  of 
the  treaty  of  the  loth  June,  184G,  in  their  ooiitrol,  possession, 
and  use,  for  such  })urpo.ses,  a  lar^ie  port'  m  of  the  country 
lyinc,  as  hereinbefore  mentioned,  on  the  nortlnvest  coast  of 
America,  to  the  westward  of  the  Rocky  ]S[ouiitains.  south  of 
the  4lUh  parallel  of  north  latitude,  and  known  as  Orciion. 
And  they  had  therein  and  thereupon  a  ri;j;]it  of  ti'ade  which 
was  virtually  exclusive. 

The  profits  derived  from  their  said  trade,  before  and  in  the 
year  1^40,  exceeded  in  each  year  the  sum  of  seven  thousand 
pounds  sterling. 

vVnd  such  right  of  trade,  and  the  control,  possession,  and 
use  of  the  said  territory  for  the  purposes  tliereof,  independ- 
ently of  their  foreign  commerce  and  the  sale  of  timber,  ex- 
ceeded in  total  value  the  sum  of  two  hundred  thousand  pounds 
sterling. 

rnder  the  settlement  of  the  boundary  line  by  the  treaty  of 
the  I'Uh  June,  1S4U,  the  said  territory  fell  under  the  sov„ 
ereignty  and  government  of  the  United  States  ;  and  by  reason 
thereof,  and  of  the  acts  and  proceedings  had  and  taken  under 
and  by  color  of  the  authority  and  of  the  laws  of  the  United 
States,  the  control,  possession,  and  use  of  the  said  territory 
by  the  Hudson's  Bay  Company,  for  the  purposes  of  their  trade, 
and  their  rights  in  the  exercise  and  carrying  on  of  their  trade 
in  furs,  peltri(!s,  and  other  articles,  as  W(dl  as  their  trade  in 
the  shipment  ami  sale  of  timber  and  their  foreign  commerce, 
were  restricted  and  denied,  and  in  efi'ect  wliolly  taken  away 
and  lost;  and  for  their  said  rights,  and  the  forced  relinquish- 
ment and  loss  thereof,  they  claim  the  said  sum  of  two  hundred 
thousand  pounds  sterling,  (.€200, 000  ;)  equal  to  nine  hundred 
and  seventy-three  thousand  three  hundred  and  thirtv-threo 
dollars  and  thirty-three  cents,  (.Sl>7o,.'3:}o   o'^>.} 

III.    NAVICATIUX    OF    TUE    rULCMOlA    UIVKIl. 

The  Hudson's  Bay  Company  aver  that,  under  the  treaty  of 
the  loth  June,  lH4t],  by  article  IV  of  that    treaty,  they    have 


rr 


wntm 


"(  : 


14 


I  i 


•  '( 


.  (i 


I'  • 
I 


'  I 


I     w 


a  ri^rlit-  to  the  froo  and  open  n:ivi2;:itif)n  of  tlio  north  br.inch  of 
th(>  (ViluTi)l'ia  vivoi'.  from  tiio  jioiiii  at  \vliicli  the  samo  is  inter- 
sected hv  the  4'Jtli  paralhd  oi'  noiih  latitude  to  the  in.ain  stre;iiii, 
ar.d  thence  ti)  the  ocean,  with  free  access  ami  passage  into  and 
tlirou:j;h  the  saiil  river  oi-  I'ivei's  ;  and  that  JJritish  subjects  trad- 
inrf  witli  them  have  an  equal  ri^htof  iiavit^ation  ;  and  that,  to  tlio 
Company,  and  to  those  thus  tradin^j;  with  tliem,  the  portages  of 
the  said  river  or  rivers  along  the  lines  thus  described  ought  to 
be,  and  of  right  are,  free  and  open. 

The  right  thus  to  navigati;  tlie  said  river  or  rivers,  and  to 
pass  unobstructed  over  their  portages,  was  and  is  of  gi'cat  value 
to  the  (Company,  and  is  also  of  great  and  increasing  ])olitical 
anil  national  value  to  the  I  nited  States  :  and  i'or  its  relinijuish- 
nient  and  transfer  the  (^)mjlany  claim  and  are  entitl(>d  to  re- 
ceive the  sum  of  three  hundred  thousand  j;ounds  sterling, 
(i;oUO,0(Kj,)  equal  to  one  million  four  hundred  and  sixty  thous- 
and dolli.rs.  {.":>l,4(;o,000.) 

In  addition  to  the  special  statements  hereinbefore  contained, 
the  Hudson's  Ibiy  Company  submit  that,  throughout  a  lung 
series  of  years,  they  (wpendod  largo  sums  of  mone}'  and  de- 
voted much  labor  and  time  in  efforts  to  bring  the  native  ])opu- 
lation  into  such  a  condition  that  safe  and  profitable  relations, 
in  re:rard  to  trade  and  general  intercourse,  couM  be  c^' a hlisluMJ 
with  them.  The  exploration  of  the  country,  the  expenditure 
for  labor,  iiiul  oi'  the  parties  engaged,  the  opening  of  roads, 
the  stroni:  force  roquircil  as  a  protection  against  the  Indians, 
their  conciliation  brought  al)out,  sometimes  by  a  resort  to  for- 
cible measures,  but  chieflv  bv  liberal  dealini:,  (dfected  a  irreat 
change  in  the  (Condition  of  tiie  counti-y,  vqv.  .  ing  it  fit  for 
immediate  settlement.  These  were  substantial  benefits  to  the 
Governmeiit  and  people  of  the  United  States,  under  wdiose 
sovereignty  this  territory  fell,  and  (-ould  not  have  been  secured 
without  a  very  large  outlay.  It  is,  of  course,  impossible  to 
give  any  minute  -(letails  of  expenditures  of  this  (dass,  and  of 
the  advantages  whicli  th(!  liuited  States  have  derived  from 
them;  but  the  justice  of  extending  to  tin;  Hudson's  Day  Com- 
pany liberal  compensation,  foumledon  these  considerations,  i-- 


■\r> 


orth  branch  of 

samo  is  iutev- 
e  main  stream, 
jssagc  into  and 
1  pulijocts  trad- 
antl  tiiat,  totho 
the  ijorta^iios  of 
cribcMl  ought  to 

rivers,  and  to 
•;  of  great  value 
'a sing  ])olitical 
r  its  reVuKiuisli- 
)  entitU'd  to  re- 
)unds  sterling, 
md  sixty  thous- 

'fore  contained, 
oughout  a  long 
money  and   de- 
lie  native  jinpu- 
itahle  relations, 
Id  !)('  (/siahlislKMl 
the  expenditure 
le'ning  of  roads, 
list  tlie  Indians, 
,'  a  resort  to  for- 
elfected  a  great 
;  .     ing    it  fit  for 
il  benefits  to  the 
es,  under   \vliose 
ave  been  secured 
se,  impossible  to 
his  class,  and  of 
ive   derived  from 
dson's  Bay  Corn- 
considerations,  i- 


too  apjiarent  to  allow  of  any  reasonable   liesitatioii    in  admit- 
ting it. 

It  is  obvious  tliat.  of  tlie   tlirce  classes  of  ebiims   set   forth 
ill  the  foregoing  mciaoriul,  tlie   first    only  cnnsi.-ts  of  |iarticii- 
lars   wliicji,  ioi    tiieir   natiir<\  admit    of  direct    pnxd'  (d"  value; 
but  witli  respect  even  to  these,  tlie  honorable  the  Commissioners 
are  c;i mostly  requested  to  notice,  that  circumstnnces  w  Inch  the 
claimants  could  in  no  dei^rei^  prevent  or  contrul,  have  "reatlv 
I  imiiaired  the  means   of  iirodiieing   such    pi-ool    in  the   positive 
and   complfte  form    wiiiidi,    oiherwise,    tliey  would   have   been 
enalded  to  do.      Among  these  circumstances   may  be  specified 
the   ag^-r(\ssive    acts   and    the   general    conduct    of   American 
citizens,    and    id'  persons   aeiiug    un.Kjr   the   authority   of   the 
United  States,  commencing  sliortiy  after    he  l-uli  June,  1840, 
and  contiiiiiiiig  from  year  to  year,  by  which  tiie  rights  of  the 
ch-iii:iaiits   under   that    treaty   were   violated   and   denied,    and 
their  [iroperty  and  jn)Ssessioiis  were,  in  some  instances,  usur[)ed 
and  taken  from   tiiem,  am!,  in   others,  were  necessarily  aban- 
doned.     This  course  of  conduct  was,  perhaps,  to  be  expectt't', 
from    'lie   anomalous    position   in    wliieh    the    Company    were 
piacc'I — a  foreign  corporation  (>xercisiiig  a  (iinisi  sovereignty 
and    exclusive    rights   over   territory  tr;insferred    to  a   Power 
viiose  policy  ill  dealing  with  sueh  territory  was  diametrically 
Ojiposed  to  that  which  the  Company  jjursiied,  and  I'rom  which 
they  derived  their  j.rofits.      But  however  this  may  be,  it  is  an 
undouhted  eonsequenee  to  the  Company  tiiat  their  rights  and 
possessions   have   been    t  ii(>r(d)V  made   id'  comparatively    little 
value,  and  tiie  dillieulty  of  obtaining  evidence  upon  them  has 
Iceii  rendered  very  great.      This  diiliculty  has  been  essentially 
increased   by  the   lapse  of  time  since   the   claims   first   arose. 
A    delay    of  seventeen    yi^ars    intervened,    during    which    the 
U.iited  States,  while   faildig   to  cause   the   rights  of  the  lliid- 
80:1  s  iJ.iy  ('ompany  to  lie  respected,  continued   to   refuse  any 
S!i:  i-taetory    settlement   of    their    demands.       The    inevitable 
eflect   cd'  this   delay,  now   exttoided    to   nearly    twenty   years, 
h;i>  heen  to  remove  l)y  death,  or  otherwise,  the  greater  number 
of    important  witnesses,  and  to  weaken   the  evidence  which  is 
Still   a\ailable,  both   by   the   remoteness,  in   point  of  time,  of 


4 


V 


'  1 , . 


I    I 


M        ] 


10 

tlic  facts  to  be  established,  and  by  reason  of  tbo  natural  de- 
cay nr  of  the  disnppearaiK'c  of  inucli  wliicli  CDiistituto'l  the 
value  of  tlie  riuiits  and  possessions  i'nr  \vliicli  the  present 
claims  are  made. 

With  respect  to  the  second  and  third  classes  of  claims  set 
forth,  the  claimants  solicit  the  attention  df  the  honoralile  the 
Commissioners  to  the  fact  before  alluded  to,  that  they  arc  of  a 
nature  which  does  not  admit  of  a  formal  ;nid  precise  valuation 
by  testimony.  Consisting  ns  they  do  of  important  rights  of 
trade,  and  of  other  rights  of  a  public  and  nard'otial  character, 
tliev  are  manifestly  of  great  value.  ]>ut  the  estimation  to  be 
put  upon  them,  and  the  amount  of  the  money  consideration  to 
be  paid  for  their  relinquishment  and  transfer,  must  be  settled 
by  the  judguient  of  the  Commissioners,  founded  upon  their 
own  experience  and  knowledge,  aided  by  public  documents 
and  the  recorded  opinions  of  statesmen  and  writers  of  au- 
thority, anil  by  such  general  estimates  umler  oath  as  it  may 
be  possible  to  obtain. 

The  claimants  have  made  the  foregoing  statement  and  ob- 
servations with  respect  to  evidence  for  the  purpose  of  urging 
for  the  serious  consideration  of  the  honorable  the  Commis- 
sioners, that  in  their  examination  and  decision  of  the  present 
claims,  they  ought  not  to  be  restrained  by  the  rules  Avhich  are 
observed  in  the  trial  of  ordinary  issues  in  courts  of  law. 
Those  rules,  under  the  circumstances  and  for  the  reasons  above 
declared,  the  claimants  contend,  should  be  liberally  modified 
and  relaxed  in  the  present  case:  and  they  respectfully,  yet 
formally  and  solemnly,  protest,  that  a  strict  application  of 
them,  in  the  consideration  of  their  claim,  would  be  unreason- 
able and  unjust. 

In  C(jnclusion,  the  Hudson's  Bay  Company  submit  that, 
upon  the  facts  and  circumstances,  and  for  the  reasons  and 
considerations  herein  set  forth,  they  are  entitled  to  claim  and 
receive  from  the  United  States  the  several  sums  here  following: 

.Fir.sf.  For  their  forts,  posts,  establishments,  farms,  pastur- 
age, and  other  lands,  with  tiie  buildings  and  improvements 
thereon,  as  hereinbefore  set  forth,  the  sura  of  two  hundred 


m 


^■HmHIHUh 


17 


(^  natural  dc- 

iistituted  the 

the    presGiit 

of  claims  sot 
ioiior;il)le  the 
tlicv  arc  of  a 
jisc  valuation 
taut  ri;^lits  of 
iKil  chai-acter, 
/luuition  to  be 
nsiileration  to 
lUst  be  settled 
2(1  upon  their 
lie  documents 
writers  of  au- 
3ath  as  it  may 

ement  and  ob- 
posc  of  urging 
e  the  Counnis- 

of  the  present 
•ules  which  are 
courts  of  law. 
e  reasons  above 
erally  modified 
^spcctfully,  yet 

applieation  of 
Id  be  uurcason- 

y  submit  that, 
he  reasons  and 
ed  to  claim  and 
;  here  following: 
5,  farms,  pastur- 
1  improvements 
of  two   hundred 


and  eighty-five  thousand  three  hundred  and  fifty  nounds  ster- 
ling, (C2S5, :]:;().) 

'  Sccniidlii.  For  the  right  of  trade,  as  hereinbefore  set  forth, 

.     the  sum  of  two  hundred  thousand  pound  sterling,  (  CiiOCUUO.) 
i  Thlrdlif.  For  the  right  of  tlio  free  navigation  of  the  Colum- 

bia river,  as  hereinbefore  set  forth,  the  sum  of  three  hundred 
thousand  pounds  sterling,  (£300,000.) 
i  The  said  several  sums  making  together  the  entire  sum  of 
seven  hundred  and  eighty-five  thousand  three  hundred  and 
fifty  pounds  sterling,  (i:785,350,)  equal  to  three  million  eight 
hundred  and  twenty-two  thousand  and  thirty-six  dollars  and 
sixty-seven  cents,  (,$3,822,030  (JT.) 

And  the  Hudson's  Bay  Company  ask  that  the  honorable  the 
Commissioners  will,  after  due  examination,  maintain  the  said 
claim  as  just  and  reasonable,  and  will  decide  that  the  United 
States  ought  to  pay  to  the  Company,  in  discharge  of  their  said 
claims  and  rights,  and  for  the  transfer  of  them,  the  said  sum  of 
seven  hundred  and  eighty-five  thousand  three  hundred  and 
fifty  pounds,  in  sterling  money  of  Great  Britain,  equal  to 
.  three  million  eight  hundred  and  twenty-two  thousand  and 
thirty-six  dollars  and  sixty-seven  cents  in  gold,  to  be  paid  at 
the  time  and  in  the  manner  provided  by  the  said  treaty  of  the 
1st  July,  18(53. 

And  the  claimants  declare  that,  for  the  said  sum  of  money, 
or  for  such  otlier  sum  as  the  honorable  the  Commissioners  may 
justly  award,  they  are  ready  and  villing  to  transfer  to  the 
United  States  all  their  rights  and  claims  according  to  the 
terms  of  the  said  two  treaties. 

Ciis.  D.  Day, 

Counsel  for  the  Iludisoiis  Bay  Company. 
Dated  April  8,  1805. 


3  M 


\\ 


'  li ' 


. ,' 


■  f  if 


1 1 

i 


'     iM 


fil 


3IEM0RIAL  OF  THE  I'UfiET'S  SOUND  AIIICULTUIIAL  COMPANY, 


liri/ish  ami  American  Joint   CdininixHioii  on  the   Ifmhcniii  .I>ay 
and  .l*u<ji't'H  Sound  A<jriviiUu)'al  (JinnpanuH   Claims. 

To  the  Honorable  the  Commfssioxers: 

The  Pnget's  Sound  Agricultural  Company  submit  the  follow- 
ing memorial  and  statement  of  their  claims  upon  the  United 
States;  and  for  facts  and  considerations  in  support  of  such 
claims,  respectfully  declare: 

That  in  the  year  1(S40,  and  for  many  years  previous  thereto, 
the  Puget's  Sound  Agricultural  Company  were,  and  since  have 
been,  engaged  in  the  business  of  agriculture  and  farming,  and 
of  breeding  and  raising  live-stock  ;  ajid  for  the  purposes  and 
in  the  course  of  carr^nng  on  their  said  business,  they  acquired 
and  became  possessed  as  owners  thereof,  before  the  said  time, 
of  certain  farms  and  extensive  tracts  of  land  in  the  territory 
lying  on  the  northwest  coast  of  America  to  the  south  of  the 
49tli  parallel  of  north  latitude  and  north  of  the  Columbia 
river. 

That,  upon  portions  of  their  said  lands,  there  were  erected 
and  made  by  them  buildings,  enclosures,  :>nd  other  improve- 
ments of  great  cost  and  value;  and  the  Company  also  owned 
and  possessed,  and  pastured  and  fed  upon  the  said  lands,  their 
said  live-stock,  consisting  of  large  and  valuable  herds  of  cat- 
tle and  horses,  and  ilocks  of  sheep;  from  the  sale  and  disposal 
of  which,  and  of  the  other  productions  of  their  said  farms  and 
land,  they  received  great  annual  returns  and  profit. 

That  by  article  IV  of  the  treaty  concluded  between  the 
United  States  of  America  and  (rreat  Britain,  under  date  of 
the  15th  day  of  June,  184G,  it  was  j)rovided:  that  the  farms, 
lands,  and  other  projierty  of  every  description  belonging  to 
the  Puget's  Sound  Agricultural  Company,  on  the  north  side  <it' 
the  Columbia  river,  should  be  confirmed  to  the  said  Company: 
but  that  in  case  the  situation  of  those  farms  and  lands  shouKl 


8 
8 

c 
a 


li  i 


10 


(Jldims. 


i 


mit  tlio  foUo^Y- 
,on  the  United 
ipport  of  such 

cviousthcveto, 
and  since  liavc 
,d  fanning,  and 
le  purposes  and 
J,  they  acquired 
c  the  said  time, 
in  the  territory 
he  south  of  the 
the   Columbia 

JVC  were  erected 
other  improvc- 
lany  also  owned 

said  Umds,  their 
jle  herds  of  cat- 
ale  and  disposal 
r  said  farms  and 
profit. 

cd  between  the 
n,  under  date  of 
that  the  farms, 
ion  belonging  to 
the  north  side  nl 
lesaid  Company: 
and  lands  should 


be  considered  by  the  United  States  to  be  of  public  and  politi- 
cal importance,  and  the  United  States  (jovcrnincnt  should 
siujuify  a  desire  to  olitain  possession  of  tlio  whole,  or  of  any 
part  thereof,  the  |)roi)ei-ty  so  rei|iiii'ed  shonld  be;  transferred 
to  the  said  Governtnent,  at  a  proper  valuation,  to  be  agreed 
upon  between  the  |)arties. 

That  the  Government  of  the  United  States  has  not,  at  any 
time,  signified  to  the  Company  a  desire  tiiat  any  of  the  said 
y)roperty  should  bo  transferred  to  the  said  (Jovernment,  at  a 
valuation  as  provided  by  the  treaty,  nor  has  anv  transfer 
thereof  been  made;  but  the  Company  have  ever  since  con- 
tinued to  be  the  rigiitful  owners  of  the  said  hinds,  farms,  and 
other  property,  and  entitled  to  the  free  and  undisturbed  pos. 
session  and  enjoyment  thereof. 

That,  by  a  convention  concluded  between  the  two  Govern- 
ments on  the  1st  day  of  July,  I8G0,  it  was  agreed  that  all 
questions  between  the  United  States  authorities  on  the  one 
haiul,  and  tiie  Pugot's  Sound  Agricultural  Company  on  the 
other,  with  respect  to  tiie  rights  and  claims  of  the  latter, 
Bhould  be  settled  by  the  transfer  of  such  rights  and  claims  to 
the  Government  of  the  Ignited  States  for  an  adequate  money 
consideration. 

And  the  claimants  aver  that  the  riiihts  and  claims  of  the 
Puget's  Sound  Agricultural  Company,  referred  to  and  intended 
in  and  bv  the  said  convention,  are  their  riy-hts  and  claims  in 
and  upon  the  said  huids,  farms,  and  other  property  of  every 
description  which  they  so  held  and  possessed  within  the  said 
territory,  and  which,  by  reason  of  the  said  treaty  of  the  15th 
Jnne,  184G,  and  according  to  tiie  terms  of  the  fourth  article 
thereof,  llic  United  States  became  and  were  bound  to  confirm. 
And  of  the  said  farms  and  other  property,  they  now  submit 
to  the  honorable  the  Commissioners  a  detailed  statement  and 
valuation,  as  follows: 

First.  Tlie  tract  of  land  at  Nisqually,  extending  along  the 
shores  of  Puget's  Sound,  from  the  Nisqually  river,  on  the  one 
aide,  to  the  Pu-yal-lup  river  on  the  other,  and  back  to  the 
coast-range  of  mountains,  containing  not  less  than  two  hundred 
and  sixty-one  square  miles,  or  one  hundred  and  sixty-seven 


(     I 


20 


I  ; 


>■     I 


tliousand  and  forty  acres  ;  of  wliicli  said  tract  of  land  a  portion 
is  improved  and  under  cultivation  for  farming  ;ind  agi-icultiire, 
and  tlie  remaining  portion  thereof  was  occupied  and  used  \>y 
tlio  Company  for  the  grazing  and  pasturage  of  their  cattle, 
horses,  and  sheep,  and  I'or  cutting  wood  and  timher  thereon, 
and  for  other  purposes  connected  with  their  business  ;  the  whole 
being  of  the  viiluo  of  one  hundred  and  sixty  thousand  pounds 
sterling,  (  Cl()0,0()') ;)  the  fort,  bastions,  houses,  stores,  barns, 
shops,  and  outbuildings,  with  the  fencing  and  enclosures  at  tho 
main  post  and  establishment,  and  the;  houses,  barns,  outbuild- 
ings, fencing,  and  enclosures  at  the  other  f)oints  on  the  said 
land,  of  the  cost  and  value  of  four  thousand  pounds  sterling, 
(4,000;)  these  two  sums  making  together  tli(!  entire  sum  of  one 
hundred  and  sixty-four  thousand  pounds  sterling,  (  ClOl, 000,) 
equal  to  seven  hundred  and  ninety-eight  thousand  one  hundred 
and  thirty-tliree  dollars  and  thirty-three  cents,  {.S70S, 103  Co.) 
Scoondff/.  The  land  and  farm  at  the  Cowlitz  river,  known 
as  the  Cowlitz  farm,  consisting  of  three  thousand  five  hun- 
dred and  seventy-two  acres,  more  or  less,  of  which  upwards 
of  iift(!en  hundred  acres  are  improved  and  under  cultivation 
for  farming  and  agricultural  purposes,  and  the  remaining  por- 


or 


tion  is  used  for  cattle  and  sheep-ranges  and  pasturage,  and  t 
other  purposes  connected  with  the  business  of  tho  said  Com- 
pany ;  the  said  last-mentioned  land  being  of  the  value  of 
twenty  thousand  pounds  sterling,  (  1^20,000;)  the  establishment 
and  buildings  of  the  Cowlitz  farm,  consisting  of  dwellinL'- 
houses,  saw-mills,  stoi'cs,  granaries,  barns,  stables,  sheds,  ami 
niimeries,  and  of  a  great  extent  of  fencing  and  enclosures,  of 
the  value  of  six  thousand  pounds  sterling  (€0,000;)  the  saiii 
two  last-mentioned  sums  makinij  to-fotlier  the  entire  sum  of 
twenty-six  thousand  pounds  sterling,  (  C20,0()0,)  equal  to  om 
hundred  and  twenty-six  thousand  five  hundred  and  thirty-tlirct 
dollars  and  thirty-three  cents  {^V2{)j)P>Z  33.) 

TJiinib/.  'i'he  Company  also  owned  and  possessed  live-stock 
consisting  of  three  thousand  one  hundred  head  of  neat  catth 
three  hundred  and  fifty  horses,  and  five  thousand  three  hu' 
dred  sheep,  of  the  value  of  twenty-five  thousand  pounds  st 
ling,  (-£2f),000;)  which   were   pastured  and   fed   on    their    s; 


ei'- 


21 


Df  lainl  ii  portion 
iind  !i,:;ri(MiUiire, 
lied   nnd  used  l>y 

of  their  cattle, 

timber  tliorcon, 
siiioss;  the  wliolc 
thousand  pounds 
cs,  stores,  barns, 

enclosures  at  the 
,  burns,  outbnild- 
)oints  on  the  said 
1  pounds  sterling, 

entire  sum  of  one 
,rling,(i:l(;i,00O,) 
isand  oiieliundred 
,ts,(>^708,103  33.) 
iWt'A  river,  known 
housand  five  hun- 

of  which  upwards 
1  under  cultivation 
the  remaining  por- 

pasturage,  and  for 
,s  of  the  said  Com- 
t  of  the  value  of 
,)  the  establishment 
isting  of  dwelling- 
,  stables,  sheds,  and 
(r  and  enclosures,  of 
"(£0,000:)  the  sain 
r  the  entire  sum  oi 
r>,000.,)  equal  to  oiu 
red  and  thirty-thrc 

53.) 

possessed  live-stock 
I  head  of  neat  cattle 
thousand  three  hu!i 
ousand  pounds  stov- 
d   fed   on    their    sm 


KtikIs  before  and  at  the  time  of  the  conclusion  of  tlic  treaty 
of  tlic  lotli  June,  1S4(>,  and  afterwards,  until  t]i(>  time  of  tlio 
commission  of  the  acts  and  injuries  hereinafter  mentioned,  by 
wliieli  the  greater  part  of  the  said  live-stock  was  cither  killed 
or  driven  away,  and  entirely  lost  to  the  Company,  within  u 
few  years  after  the  time  of  the  said  treaty. 

And  the  claimants  aver,  that  although  at  the  time  of  the 
conclusion  of  the  treaty  of  the  l")th  dune,  lS4l),  and  for  a  lon<' 
time  before,  they  held  and  possessed  the  said  lands,  farms,  and 
other  property  as  owners  tln.'reof,  and  tlie  United  States,  by 
the  terms  and  according  to  the  conventions  contained  in  tin; 
last  treaty,  undertook  and  were  bound  to  confirm  them  in  tho 
same:  yet  the  I'nited  States  failed  to  execute  or  grant  to  tho 
said  Company  any  formal  title  of  confirmation  (jf  their  said 
lands,  farms,  and  other  f/roperty  ;  and  by  reason  thereof,  and 
of  tlie  acts  and  proceedings  of  officers  of  the  United  States, 
and  of  American  citizens,  and  others  assuming  to  act  under 
the  authority  of  the  laws  or  of  the  (Jovernmcnt  of  the  United 
States,  the  Company  were  deprived  of  the  use  and  enjoyment 
of  a  large  portion  of  their  lands,  farms,  and  other  property, 
and  of  tho  rents,  fruits,  and  profits  tiiereof ;  their  pasturage 
was  destroyed  or  taken  from  them  ;  iheir  live-stock  killed  or 
driven  off  and  wholly  lost  to  them  ;  and  their  entire  business 
broken  up  or  rendered  unprofitable. 

And  the  claimants  have,  in  consequence,  suffered  loss  to  the 
amount  of  fifty  thousand  pounds  sterling,  (  C.">0,000,)  equal  to 
two  hundred  and  forty-three  tliousand  three  hundred  and 
thirty-three  dollars  and  thirty-four  cents,  (8243,333  34.) 

It  may  be  added,  as  indicative  of  the  value  of  their  property, 
and  in  some  degree  of  the  nature  and  extent  of  the  injuries 
to  whieli  the  company  were  exposed,  that  while  they  were 
thus  suffering  from  aggressions,  and  were  disturbed  in  their  pos- 
session, as  above  stated,  a  portion  of  their  lands  was  assessed, 
for  the  purpose  of  taxation,  at  a  value  of  S817,00<>;  and  they 
were  compelled  to  pay  taxes  thereupon  from  year  to  year, 
and  have  actually  paid  for  such  taxes  the  sum  of  .Sl4,rj<J0. 

In  conclusion,  the  claimants  submit  to  the  honorable  the 
Commissioners,  that  liujv  are  entitled  to  claim  and  receive  the 


i:h!Mii 


:  I     :  ;l 


(I  ^r'  ' 


II 


Vf 


iihii/ii: 


T:i;! 


i 


22 

fair  value  of  thoir  said  funns  and  extensive  tracts  of  land,  and 
a  ju<t  coinpcnsatjon  for  the  capital  exponildl  in  tlu;  ae((nisition 
and  iuiprovcmcnt  ut"  tlicir  said  i)r()pei'ty,  and  in  lliu  linildi:i;:;s> 
fort-i,  mills,  trading  cstaMisliniunts,  ami  cMclosures  ilicro- 
on  ;  and,  further,  compensation  for  the  loss  of  their  live-s'oek, 
and  for  other  loss  suffered  by  them  in  conse(iucnce  of  the  aets 
and  proceedings  hereinbefore  complained  of.  And  they  ask 
that,  upon  the  facts  and  circumstances,  and  for  the  reasons 
and  considerations  hereinbefore  set  forth,  the  honorable 
tlie  Commissioners  will,  after  due  examination,  maintain 
their  claim  as  just  and  reasonable,  and  will  decide  that 
the  United  Statics  ought  to  pay  to  the  said  Company,  in 
satisfaction  ami  dischur^'e  of  their  said  riifhts  and  claims,  and 
as  a  proper  valuation  ami  adequate  money  consideration  for 
the  transfer  and  reliiKiuislunent  of  them,  the  several  sums 
hereinbefore  snccifieil  and  now  followiu'',  that  is  to  siiv: 

For  the  farms  ami  land,  w  n  the  ijuildiiii's,  forts,  tradinj; 
establishments,  and  iinprovcuients  thereon,  one  hundred  and 
ninety  thousand  pounds  sterling,  (£liMJ,<)UO ;)  for  the  '  iss  of 
tlie  live-stock,  and  other  loss  suffered  by  them  by  reason  of 
tiie  acts  and  proceedings  hereinbefore  complained  of,  fif'^y 
thousand  pounds  sterling,  (X'">0.O()(J;)  making  together  the 
entire  sum  of  two  hundreil  and  forty  thousand  pounds  sterling, 
money  of  Great  Britain,  (€240,000,)  equal  to  the  sum  of 
one  million  one  hundred  and  siAty-ciii;ht  thousand  dollars, 
(.':?1,1(J8,000,)  to  be  puid  in  gold,  at  the  time  and  in  the  manner 
provided  by  the  treaty  of  1st  July,  18(3;3. 

iVnd  the  claimants  declare  that,  for  the  said  sum  of  money, 

or  for  such  other  sum  as  the  honorable  the  Commissioners  may 

justly  award,  they  are  read}''  and   willing   to    transfer   to  the 

United  States   all    their   rights    and  claims,  according   to   the 

terms  of  the  said  two  treaties. 

Ciis.  D.  Day, 
Oiiniselfor  Puget's  /Sound  Agr'l  Companij. 

Dated  April  10,  18G5. 


I 


;   '•!', 


af  1(111(1,  and 

iKMjuisition 
u  lHiil<li:i,i;>*> 
urcs  tlicrc- 
i'  livc-.s*;ock, 
)  of  tho  nets 
11(1  lliey  ask 

tlic  reasons 

lionoi'al)le 

II,    niaintiiin 

[Iccidc    that 

Jompaiiv,  in 

claims,  and 
Icralion  for 
overal  sums 
:o  say: 
)rts,  trading 
lundi'cd  and 
r  the  '  iss  of 
»y  reason  of 
ned  of,  fifi-y 
:ogcther  the 
lids  sterling, 

the  sum  of 
and  dollars, 
n  the  manner 

m  of  money, 
^sioners  may 
iisfer  to  the 
•din^   to   the 

Day, 

r'l  Company/. 


mim  To  AiiKxn  ^iemiikial. 


'I 


1    Hi'ltixli  (i)iil  Aiinricdn   Juint  dnin/i/SKion  on   tin'  lluihnn'H  liai/ 
iiinl  /*ii(/('f's  Sotonl  Aijrlcnltnral  CoinjxtnieH   Claim. 


Jriiisniucdi  as  it  appears  by  the  evidence  of  record  that  tlic 
lands  elainicd  by  the  lliidson's  Bay  Coiiij)any,  of  each  of  the 
posts  (d'  A'aiicoiivcr  and  C(dvile,  greatly  exceed  in  value  tho 
re>peetivL'  amounts  stated  and  claimed  for  them  in  the  memo- 
rial ill  this  cause  filed,  it  is  moved  hy  the  counsel  for  the 
claimants  that,  in  or(lcr  to  equalize  their  claim  with  the  proof, 
thi'V  be  permitted  to  amend  the  statement  of  the  value  of  the 
said  lands  contained  in  their  memorial  to  the  effect  and  in  the 
manner  following,  that  i.-,  to  say: 

1.  That  an  addition  of  .t'^'y.QOO  sterling,  equal  to  8413,- 
GGiJ  (J(!,  be  made  to  their  claim  for  the  land  at  A'aiicouver,  and 
that  such  cliiim  be  taken  and  held  to  be  for  the  sum  of  one 
hundred  and  sixty  thousand  pounds  sterling,  equal  to  $778,- 
GGO  GO,  instead  of  f^eventy-five  thousand  pounds  sterling,  e(tual 
to  !<oG">,OIJO. 

2.  That  an  addition  of  £0,500  sterling,  equal  to  8-lG,230  34, 
be  made  to  their  claim  for  the  land  at  Colvile  and  White  Mud 
farm,  and  thai  such  claim  be  taken  and  held  to  be  for  fifteen 
thousand  pounds  sterling,  equal  to  873,000,  instead  of  five 
thim.-and  five  hundred  pounds  sterling,  e(iual  to  82G,77G  GG. 

And  that,  in  conformity  with  such  amendment,  the  state- 
ment in  the  meuKvial  of  the  aggregate  value  of  the  rights  of 
the  claimants,  and  the  conclusions  by  them  therein  taken,  be 
reformed  and  increased  by  adding  thereto  the  said  sum  of 
£85,000  sterling,  ami  the  said  sum  of  £0,500  sterling,  making 
together  the  sum  of  ninety-four  thousand  five  hundred  pounds 
sterling,  equal  to  four  hundred  and   fifty-nine  thousand  nine 


fnr- 

t: 


■4MMH 


IMMUPililliS 


I  -ll 


24 

hundred  dollars,  and  that  the  entire  amount  of  their  claim  be 
taken  and  licld  to  be  the  sum  specified  in  the  said  statement 
and  conclusions,  together  witli  the  further  sum  of  four  hundred 
and  fifty  thousand  nine  hundred  dollars  thereunto  added. 

Oils.  D.  Day, 
Counsel  for  IL  B.  Co. 
June  10,  18G8. 


iii-!' 


•t     i 


,1    .;■,.... 


■  I   11::' v 


r' ., 


i|i 


!iii;i:i:^, 


I'iill 


^immmmm 


leir  claim  be 

id  statement 
four  iiiindi  od 
0  added. 
[).  Day, 
//.  IL  Co. 


OK  'I'lIK 

HUDSON'S  BAY  COMPAIN  Y. 


I  To  the  J/onor((b/e  the  Com/ui\s.slonrrs: — 

-  Tho  claims  of  l!;o  Hudson's  Bay  Coiiipaiiy  no-aiiist  tlio 
United  States  -ire  founded  on  tlie  tliii-d  article  of  tlie 
treaty  l)et\vecn  Great  Britain  and  the  Tnited  States,  of 
June  loth,  A.  D.  1840,  as  follows: 

Art,  hi.  In  tlic  future  aj)i)ropriation  of  tlie  territory 

south  of  the  forty-ninth  parallel  of  north  latitude,  iis  pro- 

vuled  in  the  first  article  of  this  treatv,   tho  jtossessorv 

ri.o-hts  of  the  Hudson's  Bay  Company,  and  of  all  ]}ritish 

vsul)jects  who  may  he  already  in  the'occupation  of  land, 

for  other  proj)erty,  lawfully  acciuired^  within  the  said  ter- 

iritory,  shall  he  respected. 

I     And  on  the  following  clause  of  the  Treatv  of  Julv  1st 
418G3,  namely:  '    ^  .  .         » 

I  Art.  I.  And  whereas  it  is  desirahle  that  all  questions 
hetween  the  Tnited  States  authorities  on  the  one  hand,  and 
the  Hudson's  BayandPugefs  Sound  An-ricultural  Compa- 
nieson  the  other,  with  respect  to  the  j.cissessorv  rights  and 

Iclaimsof  those  companies,  and  of  any  other  British  suh- 
jects  in  Oregon  and  Washington  territory,  should  he 
sc>ttled  hy  the  transfer  of  those  rio-hts  and  claims  to  the 
Goyernment  of  the  Tnited  States,  for  an  adeciuatc  money 
consideration. 

In  the  exhihition  of  its  pretended  rights,  the  Hud.son's 
Bay  Company,  hy  its  memorial,  claims  compeiisati',)n  on 
account  of  various  trading  posts  or  stations  which  it  i»ro- 
fesses  to  have  occupied  and  improved  in  the  territory  of 
the  Tnited  States,  now  ]iolitically  organized  as  the  State 
of  Oregon,  and  the  Territory  of  Washington. 


\% 


(■in, 
Mil' 


mmaammammamsm 


•   i. 


i ., 


11.  • . 


(       i. 


It  also  claiins  eonii)en8iitio)i  on  account  of  pretended 
rights  of  trade  and  of  navigation  independent  of,  or  dis- 
tinct from,  the  occupation  of  land. 

And  on  account  of  tlicse  various  branches  of  pretended 
right,  the  Company,  in  its  original  memorial,  claims  com- 
pensation to  the  amount  of  three  million  eight  hundred 
and  twenty-two  thousand  and  thirty-six  dollars  ($3,822,- 
036);  and  in  a  motion  to  amend,  claims  the  further  sum 
of  four  hundred  and  fifty-nine  thousand  nine  hundred 
dollars  ($450,000):  making  hi  all,  the  total  claim  of  four 
million  two  hundred  and  eighty-one  tliousand  nine  hun- 
dred and  thirty-six  dollars  ($4,281,936.) 

Tiie  duty  to  be  performed  by  the  Commissioners  in  the 
premises  is  defined  in  the  second  article  of  the  treaty  un- 
der which  they  act,  requiring  that  they  shall  "make  and 
subscribe  (as  they  have  in  fact  done)  a  solemn  declaration 
that  they  will  impartially  and  carefully  examine  and  de- 
cide, to  the  best  of  their  Judgment,  and  according  to  jus- 
tice and  equity,  without  fear,  favor,  or  affection  to  tlieir 
own  country,  all  the  matters  referred  to  them  for  their 
decision." 

We  propose  and  expect  to  show,  to  the  satisfaction  of 
the  Commissioners,  that  tliese  claiihs  of  the  Hudson's 
Bay  Company  are  for  the  most  part  utterly  destitute  of 
any  truth  or  Justice  in  fact  or  in  law:  that,  in  so  far  as 
there  may  be  right  in  any  part  whatsoever  of  such  claims, 
the  same  are  extravagantly  and  monstrously  exaggerated 
])y  the  claimants,  to  such  exorbitant  degree  as  to  sound 
in  fraud,  and  to  dishonor  and  discredit  tlie  entire  cause  of 
the  Company. 

The  discussion  of  the  subject  involves,  in  the  first  place, 
sundry  general  consideratit)ns;  and  in  the  second  place, 
examination,  in  detail,  of  the  various  heads  or  branches 
of  claim,  as  subdivided  in  the  memorial  of  the  Company. 


fl!!iii;;r 


numrn 


•  » 


>f  pretonded 
lit  of,  or  dis- 

)f  pretended 
claims  com- 
glit  hundred 
iars  ($3,822,. 
further  sum 
inc  liundred 
hiim  of  four 
ud  nine  huu- 

ionersin  the 
lie  treaty  un- 
l  "make  and 
1  dechiration 
nine  and  de- 
rdiui;'  to  jus- 
;tion  to  tlieir 
lem  for  their 

itisfaction  of 
lie  Hudson's 
'  destitute  of 
:,  in  so  far  as 
'  such  chiims, 
exago'erated 
as  to  sound 
itire  cause  of 

iielirst  place, 
;econd  place, 
1  or  brandies 
le  Company. 


(A.) — GkNEUAL  CONSIDEUATIOXS. 

The  Treaty  of  June  15th,  184G,  between  the  United 
States  and  Great  Britain,  provides, — 

"That  in  the  future  appropriation  of  the  territory  south 
of  the  4'.)th  parallel  of  north  latitude,  *  *  tlie  posses- 
ory  rights  of  the  Hudson's  Bay  Company,  and  of  all 
British  subjects  who  might  be  already  in  the  occu]iation 
of  land  or  other  proi)erty  lawfully  acquired  within  the 
said  territory,  should  be  respected." 

I.  The  first  observation  which  suggests  itself  is,  that 
the  obligation  assumed  by  the  United  States,  in  the  clause 
of  the  treaty  quoted,  is  to  commence  in  future,  upon  the 
"appropriation  of  the  Territory."  That  is  to  say,  the 
United  States  undertook  to  respect  the  jtosscssory  rights 
of  the  Hudson's  Bay  Company  upon  their  "future  ap- 
propriation" of  the  territory. 

Appropriation  of  the  territory  would  consist  in  the 
United  States  doing  one  or  both  of  two  things;  (1)  Tak- 
ing for  its  own  use  such  portions  of  land  as  it  would  need 
for  public  purposes  as  military  reservations,  light  houses, 
&c;  (2)  Establishing  its  land  system  over  the  territory. 

Whenever,  in  thus  making  appropriation  of  the  terri- 
tory, the  portion  of  land,  sought  to  be  afjpropriated,  in  any 
degree  infringed  upon  the  possessory  rights  of  the  Com- 
pany, the  United  States  were  bound  to  respect  those 
rights.  If  the  United  States  had  never  made  appropria- 
tion of  the  territory,  the  special  obligation  assumed  by 
them  in  the  treaty  would  never  have  occurred,  and  the 
Company  would  have  been  left  lor  the  protection  of  its 
rights,  whatever  they  might  be,  to  the  general  principles 
of  public  or  municiital  law,  as  the  same  might  be  appli- 
cable to  the  subject. 

In  taking  possession  of  land,  to  which  the  Company  had 
possessory  rights,  for  public  uses,  the  ignited  States  would 
only  be  l)ound  to  respect  the  ]>ossessory  rights  of  the  Com- 
l)any  to  the  same  extent,  as  in  case  of  similar  rights  of 
American  citi/.ens.     Aiul  tliis point  is  expressly  regulated 


nnnni 


:i|:f,  ^ 


^m$ 


[|i{ii:i 


' :   I'.i  •'  i,." 
J       !    :'  'I 


Hi 


.h  \i 


4 

l)y  tliu  Coiistitiitioii,  wliit.-h  provides  that  priviito  jtropcrty 
shall  not  hv  taken  tor  puhlic  uses  oxcc[tt  on  jnst  compen- 
sation. Whenever,  therefore,  the  United  States  took  pos- 
session of  hmdin  \\hi(,-h  tlie  Con)})any  claimed  possessory 
rights,  the  C()m[»any  would  have  no  other  claim  against  the 
United  States  than  for  just  comi)ensation.  Such  just  com- 
pensation is  very  properly  detined  by  the  Court  of  Claims 
of  the  United  States  as  the  value  of  the  pro[)erty  taken. 
See  .Tohnson  vs.  the  United  States,  2  Nott  <fc  llun- 
Iluntington,  p.  891. 

II.  The  next  question  is,  What  is  the  meaning  of  the 
term  "possessory  rights,"  as  used  in  the  treaty? 

The   distinction   between  possessory-  and  i)roprietary 
riii'hts  has  been  the  subject  of  discussion  in  several  recent 
decisions  of  the  Supreme  Court  of  the  United  States. 
See   Dellaro  vs.  V.  S.,  o  Wallace,  jt.  oOO. 
Iliguera  vs.  U.  S.,  Ibid.,  p.  820. 
Grisar  vs.  McDowell,  G  Wallace,  GQo. 

The  distinction  requires  examination  in  the  })resent 
case,  and  admits  of  being  regarded  under  divers  aspects. 

1.  The  term  "possessory  rights''  means  such  rights  as 
grow  out  of  the  possession  of  j)roperty,  real  or  personal. 
"Possessory  rights"  are  precisely  the  same  thing  as 
"rights  of  posession.'"  "Possessory  rights"  and  the 
"right  of  possessioif"  are  convertible  terms:  they  are 
such  rights  as  grow  out  of  the  possession  of  property. 

To  possess  property  it  must  actually  exist:  possession 
necessarily  ini[)lies  something  ca]»able  of  being  possessed. 

Nothing  can  be  possessed  but  that  which  has  actual 
physical  substance.  One  is  in  possession  of  a  house  or  a 
field,  or  a  book,  because  such  things  are  capable  of  posses 
sion.  But  one  is  not  in  })Ossession  of  rights  in  action,  as 
money  due  on  bond,  or  other  contract,  which  are  choses  in 
action. 

Tiius,  in  the  case  of  a  bond  or  note,  the  owner  has  pos- 
si'ssory  right>  in  the  paper  or  note,  with  the  writing  o!i  it. 


mmmmm 


nnnnRnin 


lite  property 
l^st  c'OMipeu- 
tcs  took  pos- 
1  possessory 
I  iigainstthe 
eh  just  coni- 
rt  of  ChiiiDs 
)erty  taken, 
fott  (k  IIiui- 


uiiiig  of  the 

proprietary 
veral  recent 
(1  States. 


the  j)resent 
'ers  aspects, 
ich  riii-htsas 
or  personal, 
le  tiling  as 
>"  and  the 
s:  they  are 
3f  property. 
:  possession 
g  possessed, 
has  actual 
I  house  or  a 
)le  of  [tosses 
in  action,  as 
ire  choscs  in 

ner  has  pos- 
•liting  on  it, 


and  may  maintain  trover  for  the  same;  but  he  has  no  pos- 
sessory right  to  the  sum  due  on  the  Ijond  or  note.  In  re- 
ference to  that,  he  only  has  a  right  of  action.  A  familiar 
illustration  of  the  distinction  between  possession  and  a 
right  of  actior>  is  furnished  by  the  case  of  a  husband,  who 
accjuires  title  to  his  wife's  choscs  in  action,  when  he  re- 
I  duces  them  to  possession.  As  husband,  he  luis  a  right  to 
!•,  collect  Ills  wife's  choses  in  action  :  if  he  does  so  collect 
them,  tlicy  become  liis  property.  Here,  first,  lie  has  only 
a  right  to  collect;  second,  a  perfect  title  by  actual  pos^- 
session. 

J      Possessory  rights  can  arise  oidy  from  i.ossession.    Pos- 
'  session  can  exist  but  in  reference  to  that  which  has  phys- 
ical being.     The  possessory  rights  of  the  Comj.any  are, 
therefore,  such   rights  as  arise  from  their  possession  of 
land  or  pcrsoual  jtroperty  in  the  ceded  territory. 

As  we  understand  the  memorial,  there  is  no  allegation 
that  the  "possessory  riglits"  of  the  Company  in  any  [.er- 
sonal  proi.erty  luive  been  violated  l)y  the  United  States. 
Such  being  the  case,  we  think  it  unnecessary  to  say  any 
thiug  further  in  reference  to  the  possessory  rights  of  the 
Company  in  personal  })roperty. 

We  propose  to  confine  ourselves  entirely  to  the  (piestion 
of  the  "possessory  rights"  of  the  Company  to  land  in  the 
territory. 

IIJ.  AVhat  are  the  "possessory  rights  "  of  the  Company 
to  land? 

1.  It  is  clear  that  the  Company  have  no  fee  simple 
title  to  land,  because  no  such  title  can  be  ac(piired  to  lands, 
under  the  laws  of  England  or  the  United  States,  except 
by  grant  from  the  sovereign  authority.  This  principle  of 
law  is  so  fundamental  in  the  jurisprudence  of  Great  Bri- 
tain and  the  United  States,  that  it  is  thought  unuecessary 
to  nudve  an  extended  argument  on  the  point.  It  is  deemed 
sufficient  to  refer  to  the  following  authority: 


Sf 


iW 


(i 


'  f 


( 


■? 


I'    I'i 


)■; 


-i  :.■. 


■  ,i''l 


"^t  is  a  fiinflameiital  principle  in  the  English  law,  that 
the  king  is  the  law  paramount  of  all  the  land  in  the 
kingdom,  and  the  true  and  only  source  of  title.  In  this 
country  we  have  adopted  the  same  principal  and  applied 
it  to  our  republican  governments,  and  it  is  a  settled  and 
fundamental  doctrine  with  us,  that  all  individual  title  to 
land  within  the  United  States  is  derived  from  the  grant 
of  our  own  local  governments,  or  from  that  of  the  United 
States,  or  from  the  Crown  or  royiJ  chartered  governments 
established  here  prior  to  the  revolution." 

(3  Kent's  Commentaries,  sec.  37,  pp.  457,  458.) 

There  is  no  pretence,  therefore,  whatever,  for  claiming 
that  the  Company  is  entitled  to  a  fee  simple  title  to  land. 

Indeed  the  treaty  etfectually  dispones  of  this  (piestion: 
for  itspeaksonly  of  "possessory  rights  '  in  the  Company, 
necessarily  implying  that  the  fee  simple  title  was  not  in 
the  Company. 

2.  Assuming  then,  that  the  company  have  no  fee  simple 
title  to  land  in  the  territory,  an  estate  in  law,  analogous 
to  that  of  the  company  in  184G,  is  what  the  common  law 
denominates  an  "estate  at  will." 

An  estate  at  will  is  defined  to  be,  "where  on 3  man 
lets  laud  to  another  to  hold  at  the  will  of  the  lessor." — 
(3  Kent's  Com.,  sec.  iii.,  p.  114.)  A  simple  permission 
to  occupy  creates  a  tenancy  at  will. — (Doe  vs.  Wood,  14 
Meeson  &  Welsby,  682.) 

The  possessory  rights  of  the  tenant  may  be  defined  aa 
follows: 

(3  Kent's  Com.,  sec.  iii.,  p.  114.) 

a.  Tenant  has  a  right  to  the  possession  of  the  land  until 
the  crop  is  gathered. 

h.  lie  is  entitled  to  the  use  and  fruit  of  the  land. 

c.  He  is  entitled  to  reasonable  estovers. 

d.  lie  can  maintain  trespass  tigainst  wrong  doers,  who 
invade  his  possession. 

By  the  English  statute  of  frauds,  generally  adopted  in 
the  United  States,  "all  estates  or  uncertain  interests  in 
land,  made  by  parol,  and  not  in  writing,  have  the  force 
and  otroot  of  estates  at  will  onlv." 


lish  law,  tliat 
land  in  the 
itle.  In  this 
I  and  applied 
a  settled  and 
•idual  title  to 
om  the  grant 
)f  the  United 
governments 

H,  458.) 
,  for  claiming 
3  title  to  land. 
:his  ([uestion: 
he  Company, 
de  was  not  in 

no  fee  simple 
iw,  analogous 
!  common  law 

lere  on  3  man 
the  lessor." — 
le  permission 
vs.  "Wood,  14 

be  defined  as 


the  land  until 

the  land. 

ng  doers,  who 

illy  adoptee!  in 
in  interests  in 
have  the  forco 


Under  the  English  and  American  law,  all  possession  ot 
land,  with  the  consent  of  the  owner,  without  a  written 
agreement,  is  an  estate  at  will. 

A  tenant  at  will  is  not  entitled  to  be  paid  for  improve- 
ments. 

3.  A\"e  might  also  consider  the  quCvStion  of  "possessory 
rights"  as  illustrated  by  the  relation  of  the  Indians  in 
America  to  the  European  sovereignties  established  here, 

I  the  law  being  the  same  in  that  respect  both  in  Great 
I  Britain  and  the  United  States. 

See   Wilkes  vs.  U.  S.,  9  Peters,  711. 

Worcester  vs.  Georgia,  6  Peters,  615. 
Lattimer's  Lessee  vs.  Potet,  14  Peters,  4. 
U.  S.  vs.  Fernandez,  10  Peters,  303. 
This  point  will  be  more  particularly  discussed  hereafter, 
in  examining  the  value  of  the  claims  of  the  Company. 

4.  Another  pertinent  analogy  is  that  of  the  pre-emption 
laws  of  the  United  States. 

This  also  will  be  further  considered  in  discussinir  the 
Svalue  of  the  Company's  claim. 

5.  But  we  have  no  occasion  to  rest  on  mere  analogy  in 
the  present  case. 

It  is  the  ordinary  case  of  occupation  of  land  by  a 
licensee  at  will. 

The  Company  were  rightfully  in  this  territory  only  by 
virtue  of  the  license  of  trade. 

This  is  obvious  by  reference  to  the  terms  of  their 
original  charter,  which  restricts  their  operations  to  the 
country  around  Baffin's  Bay. 

Further,  it  appears  by  their  acceptance  of  the  license 
of  trade,  which  is  an  admission  on  their  part  that  with- 
out such  license  they  would  have  had  no  authority  to  op- 
erate in  this  territory. 

And  it  appears,  further  still,  by  their  yielding  to  the 
authority  of  the  British  Crown,  in  revoking  tlieir  license 
in  British  Columbia,  thus  giving  a  practical  construction 
to  the  jwwers  conferri'd  upon  them  ;inder  tlieir  origitud 
<'h:irt('r. 


}  l1^ 


mmmmmmm 


.VI 


And  horo  we  nuiy  rcnjark,  tliiit  wo  do  not  think  it 
necessary  to  raise  the  (questions,  whieli  liave  l)ccn  raised 
in  (ireat  Britain,  as  to  whether  the  Company,  under  tlieir 
original  cliarter,  have  any  other  tlian  proprietary  riglits 
as  owners  of  tlie  land.  As  appears  from  Mr.  Dodd's 
address,  hereinafter*  referred  to,  p.  30,  it  appears  that 
grave  douhts  exist  in  tlie  best  legal  minds  of  Great 
Britain,  Avhether  the  original  charter  of  the  Company 
legitimately  conveys  to  the  Company  anytliing  more 
than  the  ownership  of  the  land  eml)raced  in  it.  But  we 
think  it  unnecessary  to  pursue  that  inquiry  in  this  rela- 
tion and  [)lace. 

It  is  enougli  for  our  purpose  to  show  that  the  Com- 
pany were  acting  .n  this  territory  only  by  virtue  of  the 
license. 

Assuming  that  this  is  a  question  of  law  established  in 
the  case,  then  we  propose  to  see  wluit  consequences  fol- 
low froi;;  it. 

{a)  The  license  is  an  authority  to  tlie  Company  to 
carry  on  exclusive  trade  with  the  Indians. — Company's 
Evidence,  p.  317.     It  is  this,  simpl\  this,  and  no  more. 

The  first  question  which  arises  in  this  connection  is, 
what,  if  any,  right,  interest,  privilege,  or  title  to  land, 
this  license  conveys.  Xo  mention  is  made  of  land.  The 
territory  was  in  such  a  condition,  being  claimed  both  by 
the  United  States  and  Great  Britain,  that  it  would  have 
been  improper  in  Great  Jiritain  to  nuike  any  alienation 
of  land  in  it.  And  it  is  on  general  princi}»le,  resulting 
from  the  fact  of  the  United  States  clainiino;  the  territorv, 
and  special!}'  because,  by  the  treaty  of  Joint  occupancy 
between  Great  Britain  and  the  United  States,  neither 
jnirty  was  to  do  any  thing  to  the  prejudice  of  the  other 
party  in  reference  to  the  territory. 

And  in  this  connection  it  is  proper  to  note  that  the 
treaty  of  1846,  by  establishing  the  49th  parallel  as  the 
boundary  line,  admitted,  as  matter  of  law,  that  the  claim 
of  tlie   Tnited  States  was  well  ibundcd  up  to  this  line. 


jomm 


wmmmmmmmm 


JM^ 


!) 


not  think  it 
l)ccn  niised 
^,  iindGr  tlieir 
ietary  riijlits 
Mr.  Dodd's 
appears  that 
ds  of  Great 
he  CoTiijiaiiy 
ythiiig'  more 
I  it.  But  we 
:  in  this  rela- 

at  tlio  Corn- 
virtue  of  the 

'stablislied  in 
:}quGncos  i'ol- 

Conipany  to 

— Company's 

d  no  more. 

onnection  is, 

title  to  land, 

»f  land.     The 

nied  both  bv 

would  liave 

ly  alienation 

})le,  resultino; 

the  territory, 

it   occupancy 

tates,  11  either 

of  the  other 

note  that  the 
arallel  as  the 
hat  tlie  claim 
I  to  this  line. 


The  United  States,  it  must  be  remembered,  did  not  de- 
rive title  to  this  territory  from  the  treaty  of  IS-IO.  The 
legal  effect  of  the  treaty  was  only  that  it  containe<l  the 
acknowledgment  by  Great  Britain  of  the  pre-existing  title 
of  the  United  States.  In  legal  contemplation  the  terri- 
tory was  the  territory  of  the  United  States,  thence  hith- 
erto, at  and  previous  to  the  issuing  of  the  license  of  trade 
to  the  Company. 

As  a  question  of  law,  then,  at  the  time  of  the  conces- 
sion of  the  license,  a  grant  of  land  in  the  territory  from 
the  British  Crown  would  have  been  without  legal  author- 
..  ity,  as  attempting  to  grant  land  lielonging  to  the  United 
States  and  not  to  Great  Britain. 

In  point  of  fact,  then,  and  in  point  of  law,  the  license 
of  trade  did  not  grant  any  permanent  estate  in  the  lands 
of  tlie  territory. 

The  question  now  comes  up,  what  interest  in  the  land 
did  the  license  ijrant? 

In  determining  this  question,  the  status  of  tV  ;  territory 
must  be  kept  in  mind.  It  was  claimed  by  botli  Great 
Britain  and  the  United  States,  the  title  of  the  United 
States  being  subsequently  admitted  by  Great  Britain. 
By  the  terms  of  the  treaty  of  Joint  occupancy  the  terri- 
tory  was  open  to  the  occupancy  of  the  subjects  of  Ijoth 
countries  for  the  time  beinir. 

The  utmost  which  could  properly  be  claimed  on  behalf 
of  the  Company  in  this  regard  is,  that  the  license  author- 
ized the  provisional  occupancy  of  so  much  of  the  terri- 
tory used,  ';i  such  manner  as  was  necessary  and  proper 
to   effectuate   the   power   of    exclusive    trade    with    the 
Indians,  conceded  by  the  license.     The  Company  were 
authorize  by  the  license  to  carry  on  exclusive  trade  with 
the  Indians,  and  as  incident  to  this  power,  to  use  land 
in  the  territory  in  such   manner,  and  to  such  extent,  as 
might  be  necessary  to  carry  on  the  business  of  exclusive 
trade  with  the  Indians, 
o 


nnmi 


irfir 


1(1 


i||i^.i^; 


i  I 


Tliis  would,  tor  iiiHtaiioo,  nccoKsarily  itni»ly  a  riglit  on 
the  part  of  the  Company  to  uso  C'ortain  points  in  the  ter- 
ritory for  posts;  also  to  open  roads,  kc.  The  privilege  of 
using  such  pasturage  as  might  be  necessary  for  the  pur- 
poses of  the  Company  would  also  seem  to  follow.  To 
this  might  be  added  the  use  of  so  much  agricultural  land 
as  would  be  necessary  for  the  purposes  of  the  Company 
as  an  Indian  trading  association.  And  also  the  use  of  the 
necessary  timber.  h\  short,  it  might  be  possible  to  claim 
for  tlie  Company  all  such  use  of  the  land  and  water  and 
timber  of  the  territory  as  might  be  necessary  for  the  pur- 
poses of  the  Company,  keeiiing  in  view  that  the  only  le- 
gitimate business  of  the  Company  was  trading  with  the 
Indians. 

The  Company  could  use  kind  in  tlie  territory,  so  far  as 
was  necessary  for  them  in  conducting  their  operations  as 
an  Indian  trading  company.  The  authority  of  the  Com- 
pany to  use  the  laiul  in  the  territory  was  limited  and  re- 
stricted within  such  a  circk^  as  was  necessary  for  them  to 
act  as  au  Indian  trading  association.  Within  this  circle 
their  use  of  the  land  might  be  rightful  and  proper:  out- 
side of  this  circle  it  was  without  authority. 

For  instance,  they  had  no  authority  to  engage  in  agri- 
culture, or  pasturage,  or  milling,  for  the  purposes  of 
carrying  on  general  trade  in  the  territory  or  with  the 
view  of  conducting  a  foreign  trade. 

All  use  of  the  land  beyond  what  was  necessary  to  en- 
able them  to  carrv  on  the  business  of  fur  traders  was  out- 
side  ot  their  powers.  The  quantum  of  their  rights  in  the 
land  of  the  territory  is  to  be  determined  by  reference  to 
the  Indian  trade. 

We  consider  these  general  principles  to  be  the  proper 
measure  of  the  rights  of  the  Com^tany  to  use  land  in  the 
territory. 

To  make  a  practical  application  of  them,  we  submit 
that  the  Company  only  had  a  right  to  occupancy  of 
lands  of  the  territorv.     There  was  no  nocossitv  for  them 


't>i';  ■'ii; 


11 


y  n  rig] it  on 
:ri  ill  the  ter- 
)  privilege  of 
for  the  pnr- 
follow.  To 
'ultunil  land 
le  Company 
lie  use  of  the 
ible  to  claim 
(1  water  and 
for  the  pur- 
;  the  only  le- 
ng  with  the 

>ry,  so  far  as 
)perations  as 
of  the  Coni- 
[litcd  and  re- 
f  for  them  to 
in  this  circle 
proper:  out- 
gage  in  agri- 
purposes  of 
or  with  the 

lossarv  to  en- 
ders  was  out- 
rights  in  the 
reference  to 

e  the  proper 
io  land  in  the 

1,  we  submit 
)ccupancy  of 
■^itv  for  them 


to  have  any  other  title  than  occupancy  in  the  then  unci- 
vilized condition  of  the  country.  Occui>ancy  was  all 
that  was  re(piisite  as  the  territory  was  then  situated. 
This  occupancy  was  an  incident  of  their  license  to  trade 
with  the  Indians.  This  license  to  trade  was  merelv  nro- 
visional,  subject  to  revocation  at  any  moment  by  the 
British  Crown. 

As  the  license  to  trade  was  the  principal  thing,  and 
occupancy  of  the  land  a  mere  incident  arising  from  such 
license,  it  is  manifest  the  right  of  occupancy  could  have 
no  more  permanent  existence  than  the  license  itself. 
The  license  to  trade  being  the  principal  right,  and  occu- 
l)ancy  a  mere  consc([Ucncc  Howing  from  such  principal 
right,  the  right  of  occupancy  must  jjerish  with  the  license. 

This  we  consider  so  plain  as  not  to  require  further  ar- 
gument. 

The  license  might  expire  in  three  ways: 

1.  By  the  cessation  of  the  interest  of  the  licensee,  or, 

2.  By  revocation. 

3.  By  expiration  of  the  title  of  the  licensor. 

It  is  laid  down  as  a  familiar  principle  of  law  that  "the 
death  of  either  party  will  of  itself  revoke  it,"  (a  license.) 
—(Washburn  on  Real  Property,  vol.  1,  p.  414.)  There 
is  no  doubt  of  this,  as  a  question  of  law  in  the  case  of  an 
individual. 

So,  by  parity  of  reason,  where  a  government,  as  in  this 
case,  grants  a  license,  the  license  expires  with  the  power 
of  this  government  over  the  subject-matter.  Where  the 
individual  licensee  dies,  the  license  expires  ;  so  where  the 
power  of  the  government  expires,  the  license  ends. 

The  British  Crown  had  authority  to  grant  the  license 
at  the  time  it  did,  but  after  the  treaty  of  1846  its  power 
in  the  matter  was  gone,  and  the  license  ended. 

If  we  are  correct  in  this  view  of  the  case,  the  Company 
had  no  right,  after  the  treaty,  to  act  under  the  license,  the 
license  being  thereby  made  void  and  of  no  effect,  and 
further  occupancy  of  land  by  them,  except  for  the  purpose 
of  winding  up  their  ]»usiness,  was  ummthorizcd. 


/ 


)   • 


V2 


ft. 


'■1  'r;!:' 

m 

vii 


'#11,, 


IJiit  iit  iUiy  rat(.',  tlie  license  by  its  oxpross  terms  was 
revocable,  and  in  point  of  tact  it  was  revoked. 

And  hero  it  is  wortliy  of  observation  tliat  tbe  licensi; 
itself  expressly  provided  tliat  it  should  not  be  operative 
within  the  territory  of  the  United  States. — (Coi.  pany's 
Evidence,  p.  i}18.)  This  is  important  •  .  sliowing  tliat  it 
never  was  tlie  intention  of  the  Britis''  Jovernment  to  au- 
thorize the  Comi)any  to  operate  .thin  the  territory  of 
the  United  States. 

Siicli  liavinii  been  the  orig"..ial  purpose  of  the  Crown 
in  the  very  act  of  grantini::  the  license,  there  was  jiecu- 
liar  propriety  in  the  revocation  thereof  alter  the  treaty 
of  1846. 

This  furnishes  us  with  additional  inducement  to  con- 
clude that  the  revocation  of  the  license  ended  the  author- 
ity of  the  Company  in  the  territory.  It  was  only  the  car- 
rying out  by  the  British  Government  of  its  primary  policy. 
The  same  considerations  of  public,  i)olicy  which  induced 
the  British  Government  to  i)rovide  expressly,  in  the  first 
intance,  that  the  Company  should  not  operate  within  the 
territorv  of  the  United  States,  would  indues  the  Govern- 
ment  to  revoke  the  license  after  the  territorv  was  ascer- 
tained  to  be  within  the  United  States. 

Great  regard  to  the  polic}-  manifested  by  the  British 
Go',  crnment  in  granting  the  license  compels  us  to  give 
the  fuliost  possible  eflect  to  its  revocation  of  the  license. 

Alter  the  revocation  of  the  license,  certainly  if  not  at 
the  date  of  the  treaty  of  1840,  the  Company  was  fiincia 
officio  in  the  territory  as  fur  trader,  and  with  its  extinction 
as  fur  trader  ended  all  riglit  to  occupancy  of  land  in  the 
territory. 

A  few  observations  in  addition  on  the  subject  of  the 
law  of  licenses,  and  we  will  pass  from  this  branch  of  the 
case. 

A  license  is  defined  as  follows  : 

"  A  license  is  an  authority  to  do  a  particular  act,  or 
series  of  acts,  upon  another's  land,  without  possessing  any 
estate  therein." 


th 


IS 


,  terms  was 
1. 

the  liocMis(! 
0  operntivii 
(Coi,  pany'H 
\\\\\<^  tliJit  it 
mciit  to  aii- 

territorv  of 

'the  Crown 
)  was  jiecii- 
•  the  treaty 

V 

lent  to  con- 
Ithe  aiithor- 
Diily  the  ear- 
Ill  ary  policy, 
lich  induced 
,  in  the  first 
e  within  tlic 
the  Govern- 
y  was  ascer- 

the  British 
;  us  to  give 

the  license, 
nly  if  not  at 
y  wasfuncta 
ts  extinction 

land  in  the 

diject  of  the 
ranch  of  the 


cular  act,  or 
)ssessinsi'  anv 


Waslilmrn  on  Real  J^roperty,  vol.  1,  p.  412, 
See  further  on  same  point : 

Cook  V.  Stearns,  11  Mass.,  fi'A^l. 

Tayler  v.  Waters,  7  Taunt.,  :}74. 

Mum  ford  v.  AVHiitney,  15  Wend.,  3H0. 

Wolfe  V.  Frost,  4  Sandf.  Ch.,  :'2. 

l*rince  v.  Case,  2  Amer.  i^eadinu'  Cases,  728. 
The  essential  and  descriptive  characteristic  of  a  license, 
(!onsidored  in  reference  to  land,  is  that  the  licensee  ac- 
(piircs  no  estate  therein.  He  receives  authority  to  do 
some  act,  or  acts,  in  connection  with  the  land  of  another, 
hut  acquires  no  estate.  Under  the  operation  of  this  piin- 
cii)le,  the  Company,  as  licensee,  ac(piircd  no  estate  in  land. 
Hence,  therefore,  it  is  further  laid  down  that  "a  li- 
cense nuiy  he  created  hy  parol,  as  it  passes  no  interest  in 
the  land." 
I        AVashhurn  on  Keal  Projierty,  vol.  1,  p.  412. 

It  is  also  laid  down  that  a  license  may  be  revoked. — 
{lb.,  p.  413.) 

Further,  that  a  license  is  strictly  construed. — (//>.,  p. 
414.) 
I     Again: 

;|  "A  license  is  so  much  a  matter  of  personal  trust  and 
confidence  that  it  does  not  extend  to  any  one  but  the 
licensee." — [lb.,  p.  414.) 

The  Company  could  not  have  aliened  the  privilege  of 
trade  they  enjoyed  under  the  license.     Neither,  it  would 
seem,  therefore,  could  the}'  alien  the  occupancy  of  land 
they  enjoyed  as  an  incident  to  the  license. 
^    In  one  class  of  cases  the  license  has  been  to  build  a 
house  on  licensee's  land,  and  in  some  cases  the  revocation 
has  been  before  the  building  was  completed,  in  others 
afterwards,  and  in  both  the   licensee  was  obliijed  to  re- 
move  it  without  any  right  to  claim  compensation.. 
Washburn  on  Real  Property,  vol.  1,  p.  415. 
Jamieson  v.  Milleman,  3  Duer,  255. 
Prince  v.  Case,  10  Conn.,  878. 


I  \m\w- 


14 


t  If 


.1  > 


t 


'ii. 


Jackson  v.  Babcock,  4  Johns.,  418. 
Batcheldor  v.  Wakefield,  8  Cush.,  252. 
Harris  v.  Gillingham,  6  N.  H.,  9. 
Benedict  v.  Benedict,  5  Day,  464. 

From  these  several  principles  of  la'.v  the  slight  and  pre- 
carious interest  of  the  licensee  appears. 

If  the  license  in  this  case  had  given  the  Company 
express  authority  to  use  and  occupy  land  in  the  territory, 
it  is  submitted,  that  upon  the  termination  of  the  interest 
of  the  licensor,  or  upon  the  revocation  of  the  license,  the 
privilege  to  use  and  occupy  land  would,  according  to  the 
principles  of  law  applicable  to  the  case,  hereinbefore  cited, 
be  at  an  end. 

If  this  be  true  where  the  license  expressly  conferred 
the  authority  to  use  and  occupy  land,  much  more  would 
this  be  the  case,  where  the  right  to  use  and  occupy  the 
land  was  not  expressly  conferred,  but  was  a  mere  incident 
as  in  this  case,  flowing  from  the  principle  right  granted 
in  the  license,  that  of  the  Indian  trade. 

IV.  We  infer  that  the  "possessory  rights"  of  the  Com- 
pany in  lands,  pushed  to  the  utmost  extent  of  possible 
legal  right,  are  only  as  follows: 

a.  liight  to  the  possession  of  land  occupied  by  them 
at  time  of  the  treaty. 

b.  Right  to  the  use  and  fruit  of  the  land  occupied  by 
them  at  time  of  the  treaty,  in  the  same  manner  they  had 
been  accustomed  to  use  it. 

c.  To  maintain  possessory  action  against  trespassers. 

d.  The  duration  of  these  rights  to  be  comn.iensuratt' 
with  the  license  of  trade  under  which  they  were  fuuc- 
I'oning  as  a  corporation  in  the  territory. 

In  short,  vl  consider  that  the  full  measu"  of  justice  is 
awarded  to  the  Company,  in  considering  them  as  tenants. 
under  the  United  States,  of  the  lands  in  their  possession 
at  the  time  of  the  treaty,  until  the  expiration  of  their  li- 
cense to  trade. 


o- 


I  ' 


15 


slight  and  pre- 

the  Company 
n  tlie  territory, 
of  the  interest 
the  license,  the 
jcording  to  the 
iinbefore  cited, 

essly  conferred 
ch  more  would 
ind  occupy  the 
mere  incident 
3  right  granted 


ts"  of  the  Com- 
ent  of  possible 

uipied  by  them 

lid  occupied  by 
anner  they  had 

nst  trespassers. 

commensuratt' 

bey  wei-e  func- 

I.:-  of  justice  is 
hem  as  tenants, 
:heir  possession 
tion  of  their  li- 


Acconling  to  this  view,  the   Company  would  not  be 
entitled  to  payment  for  the  improvemeMts  left  upon  the 
hmd  at  the  expiration  of  their  possession. 
3 

\.  But  it  may  be  thought  that  this  is  too  technical 
a  consideration  of  the  case,  and  we  will  therefore  con- 
eider  it  in  a  more  popular  light. 

We  maintain  then,  that,  by  the  treaty,  the  Company 
were,  at  most,  entitled  to  possess  only^  the  land  occupied 
by  them  at  the  time  of  the  treaty  as  they  were  then  doing. 
In  other  words,  they  had  the  right,  by  the  treaty,  to  oc- 
cupy and  use  their  posts,  and  farms,  and  pasturage,  and 
use  necessary  timber  therefor,  as  they  had  been  accus- 
tomed to  do;  and  that  this  right  was  to  continue  until 
their  license  to  trade  expired,  and  no  longer. 

Here  two  questions  occur — 

1.  Have  we  rightly  defined  the  extent  or  quality  of  the 
Company's  "possessory  rights?" 

2.  Have  we  properly  limited  the  duration  of  these 
rights,  to  the  continuation  of  their  license  to  trade? 

In  reierence  to  the  first  question,  we  do  not  well  see 
how  any  larger  detinitiou  can  be  given  to  the  term  "pos- 
sessory rights,"  in  reference  to  land,  than  we  have  given. 
"We  conceive  that  we  have  conceded  every  right  apper- 
taining to  the  possession  of  land,  where  that  possession 
is  'ot  under  a  fee  simple  title. 

i  I  I  reference  to  the  period  we  have  assigned  for  the 
duration  of  the  Company's  rights  of  possession,  we  con- 
sider that  tiiere  can  be  no  substantial  ground  for  diU'er- 
«nce  of  opinion  on  this  point. 

The  Company  were  o[ierating  in  the  territory,  south  of 
the  49th  parallel,  not  under  their  general  charter,  but 
tmdei'  a  special  license  from  the  British  Crown. 

This  license  was  Umite«l  to  twenty-one  years,  and  sub- 
ject to  repeal  at  the  pleasure  of  the  Crown.  In  point  of 
fact,  this  license  was  actually  rescinded  by  the  Crown  in 
\^K)\K — (Miscelhineous  Evidence  for  r.   ^States,  p.  388.) 


>  M 


)   i'fFilfr 


UMiillliHi 


10 


'\\'VM 


■  If  i' 


mt\ 


;<  I'    :'• 


|,i  I 


1 

i  li 


I'. I'-  lit 


The  Company  liad  no  right  whatever  to  be  in  the  ter- 
ritory, south  of  the  49tli  parallel,  excei)t  by  virtue  of  its 
license  to  trade. 

Tlie  Company  was  a  corporation  and  it  is  a  familiar 
principle  of  law,  that  a  corporation  can  act  only  within 
the  limits  of  the  authority  granted  to  it.  A  banking  cor- 
poration can  exercise  no  busifiess  but  that  of  banking: 
an  insurance  corporation  that  of  insurance,  and  so  on. 
The  same  principle  apjilies  as  to  the  territory  within 
which  a  corporation  may  exercise  its  functions. 

The  original  charter  of  the  Company  only  authorized  its 
operations  in  the  country  around  Bafiin's  Bay,  and  it  was 
only  by  virtue  of  the  license  of  tnji'j,  above  referred  to, 
that  the  Company  carried  on  its  );'  h:>!  in  this  territory. 
But  for  this  license  of  trade,  its  (/pcrations  in  this  terri- 
tory would  have  been  ultra  vires,  and  illegal.  Without  this 
license  of  trade,  its  operations  in  this  territory  would 
have  been  as  illegal  as  operations  of  the  same  nature  by 
it  would  have  been  in  India.  As  its  riglit  to  be  in  this 
territory  entirely  depended  on  its  license  of  trade,  when 
that  license  expired,  it  was  without  authority  to  continue. 

The  British  Crown  did  revoke,  in  1858,  this  license  to 
trade,  so  far  as  it  extended  to  British  Columbia,  and  it  is 
a  historical  fact  that  the  Companv  immediatelv  vielded  to 
this  action  of  the  British  Government. 

If,  therefore,  the  expiration  of  the  lie  >ii  ■  -  to  trade  in 
British  Columbia  operated  to  extinguish  the  '  'ompaii}'  in 
that  locality,  it  is  difficult  to  see  how  a  difteren;  <.  Jlect  can 
be  attributed  to  this  action  of  the  British  Government,  so 
far  as  the  rights  of  the  Company  are  coricerned,  in  the 
United  States.  To  suppose  otherwise,  would  be  to  im- 
agine tlie  extrjiordinary  spectacle  of  a  corporation  being 
held  to  be  entitled  to  greater  privileges  '",.  a  foreign  coun- 
try than  in  the  country  of  its  origin.  •  'dinarily,  a  cor- 
poration is  a  thing  of  local  existence,  limit"d  to  the  coun- 
try of  its  origin,  and  when  it  is  recognized  beyond  the 
countrv  of  its  orii>  i;,  it  is  oocause  of  the  comitv  of  nations. 


Mi. 


r 


be  in  the  ter- 
virtiie  of  its 

is  a  familiar 

t  only  within 

hankino-  cor- 

of  banking: 
;,  and  so  on. 
ritory  within 
3n8. 

authorized  its 
ly,  and  it  was 
e  referred  to, 
this  territory. 
!  in  this  terri- 

Withont  this 
'ritory  would 
me  nature  by 

to  he  in  this 
f  trade,  when 
y  to  continue, 
this  license  to 
iibia,  and  it  is 
telv  yielded  to 

so  to  trade  in 
le  ( 'ompany  in 
trejii  '.  '.oct  can 
ovjrnment,  so 
cerncd,  in  the 
»uld  be  to  ini- 
poration  being 
I  foreign  conn- 
linarily,  a  cor- 
-!  to  the  conn- 
ed beyond  the 
nitv  of  nation?. 


But  tliis  comity  has  never  boon  construed,  so  far  ns  we 
are  aware,  to  authorize  n  corjioration  to  he  (Mititlcd  to 
ffroater  ri'jrhts  in  a  foroiiiii  country  than  in  the  (;ountrv  of 
its  ori2:in. 

We  submit,  therefore,  that  if  nnythin<i,  can  be  clear,  as 
a  Icii'al  [troposition,  it  is,  that  a  corporation,  extinguished 
by  the  action  of  its  own  government,  must  l)e  treated  as  so 
extini::uished  in  foreiirn  countries. 

A  contrarv  doctrine,  in  this  case,  wouhi  be  followed  bv 
the  most  strange  result.  The  spectacle  would  be  pre- 
sented of  a  foreign  coi'i)ora:ion,  dead  at  home,  but  alive 
abroad. 

Again,  if  the  Company  was  not  extiiifrnished  by  the 
repeal  of  its  license  oltrade  within  the  United  States,  what 
limits  can  be  set  to  its  existence?  It  must  be  dead  or  per- 
petual. Surely  no  one  will  be  found  so  hardy  as  to  insist 
that  it  has  a  right  to  perpetual  existence  in  the  United 
States.  If  it  is  not  [jcrpetual,  then,  the  only  limit  to  it, 
is  the  cessation  of  its  existence  under  the  Enjxlish  law. 
According  to  that  law,  it  expired  in  British  Columbia 
in  1S,'>!I,  by  the  withdrawal  of  the  license  under  whicb  it 
had  its  being  within  the  United  States.  It  must  therefore 
be  considered  ns  ending  within  the  United  States  at  the 
same  time. 

As  confirmatory  of  this  view  of  the  case,  we  call  atten- 
tion to  the  elaborate  address  of  Mr.  .Tas.  Dodds,  a  stock- 
holder in  the  Company. 

^  "This  (1840)  was  the  palmy  time  of  the  Hudson's  Bay 
Comi)any.  Its  possessions  and  powers  were  then  at  their 
zenith.  They  held  kui)ert's  Land  by  the  royal  charter, 
Avhich  was  perpetual.  They  held  the  whole  Indian  ter- 
ritory to  the  Paciiic  by  an  exclusive  license,  which  was 
termiiuil)le  in  Ls.V.t.  They  held  A'ancouver's  island  by  a 
similar  license,  also  terminable  in  1^'){).  Three  diflerent 
possessions  bv  three  ditterent  titles."— (Mr.  Jas.  Dodds' 
Address,  p.  2-3.) 

8 


.(WTmr^ 


BHsnsnsBi 


'(''■I'l'l:  ' 


IH 


I 


M: 


VI.  if  wo  aro  correct  in  our  (lolinition  of  the  possesi?- 
ory  rights  of  the  Coiiipiiiiy,  and  the  duration  of  those 
rights,  tlio  question  may  now  properly  be  considered, 
wl]ether  tlie  United  States,  in  pursuance  of  the  obliga- 
tions of  the  treaty,  have  "respected"  those  rights. 

W^e  are  willins^  to  ffivo  to  this  clause  of  the  treatv  the 
most  liberal  admissible  interpretation.  As  comprehend- 
ed by  ni^,  it  imports  that  tlie  United  States  shall  recognize 
the  r  >ssessory  rights  of  the  Company;  that  they  shall  not, 
by  any  act  of  their  own  or  their  officers,  invade  those 
rights;  and  that  they  shall  extend  proper  judicial  remedy 
for  their  protection. 

The  liability  assumed  by  the  United  States  in  the 
treaty  in  regard  to  the  possessory  rights  of  the  Company 
is  precisely  the  same  in  principle  as  the  obligation  as- 
sumed in  former  treaties  in  regard  to  the  titles  to  prop- 
erty, to  wit,  the  treaties  with  Great  Britain,  with  France, 
with  Spain,  and  with  Mexico.  The  chief  difference  is, 
that,  in  the  case  of  this  particular  treaty  uiuler  considera- 
tion, the  recognition  is  only  of  possessory  rights,  being 
the  sole  rights  the  Company  could  have.  The  obliga- 
tion of  the  United  States  to  respect  those  rights  is  pre- 
cisely the  same  in  principle  as  its  obligation  under  other 
treaties  to  respect  land  titles,  and  its  general  obligation 
to  respect  the  titles  of  its  own  citizens  to  property  gene- 
rally. The  United  States,  by  undertaking  to  respect  the 
possessory  rights  of  the  Company,  only  assumed  in  rela- 
tion to  that  company  its  universal  obligation  to  respect 
the  rights  of  all  persons  within  its  jurisdiction  in  posses- 
sion of  propert3\  All  that  the  United  States,  therefore, 
were  reijuired  to  do  by  the  treaty  in  this  case,  was  to  re- 
frain from  violation,  by  itself  or  its  othcers,  of  the  possess- 
ory rights  of  the  Company,  and  to  permit  the  Company 
to  enjoy  the  judicial  remedies  for  individual  trespasser^ 
customary  in  the  country. 

We  make  these  observations,  because  an  idea  seems  to 
prevnil.  in  certnin  qunrters.  thfit  the  United  States  w<m'p 


m 


■m 
■-•5 
-  --^ 

■  ■■■* 


the  possess- 
ion of  tliose 
considered, 
'  the  obliga- 
iglits. 

le  treaty  tlie 
3omprehend- 
all  recognize 
ley  shall  not, 
nvade  tliose 
iicial  remedy 

tates   in    the 
he  Company 
bligation  as- 
tles  to  prop- 
with  France, 
ilitterence  is, 
ler  considera- 
rights,  being 
The  obliga- 
■ights  is  pre- 
i  nnder  other 
al  obligation 
'operty  gcne- 
to  respect  the 
imed  in  rcla- 
m  to  respect 
on  in  possei^- 
tes,  therefore, 
se,  was  to  re- 
^f  tlie  possess- 
the  Company 
Lial  trespasse:^ 

idea  seems  to 
(1  Stntes  were 


10 

bound  to  some  special  measure  of  i>rotoction  of  the  Com- 
pany's rights,  by  some  novel  legislation,  or  by  becoming, 
in  some  sense,  tlie  peculiar  guardians  of  the  Company. 
We  insist,  on  the  contrary,  that  the  rnited  States  were 
not  called  to  an}'  active  or  special  legislation  in  the  prem- 
ises, but  discharged  their  whole  duty  when  they  refrained 
from  themselyes  infringing  on  the  rights  of  the  Company 
and  permitted  the  Company  to  enjoy  the  benetit  of  their 
Judicial  system. 

To  illustrate  our  idea:  Mr.  Astor  at  one  time  was  in 
possession  of  the  trading  post  known  as  Astoria  or  Fort 
George.  If  this  ])osscssion  of  his  had  continued  at  the 
time  of  the  treaty,  the  United  States  would,  on  general 
l)rincii>les,  have  been  bound  to  respect  his  possessory 
rights.  This  obligation  would  only  imply  that  the  United 
States  were  not  to  violate  those  rights  themselves,  but 
would  not  infer  any  liability  on  the  part  of  the  United 
States  for  the  action  of  trespassers.  These  would  be  left 
to  be  dealt  with  in  the  ordinary  course  of  legal  proceed- 
ings. 

So  far,  therefore,  as  the  Com[>any  complain  of  unau- 
thorized trespassers  upon  their  posessions,  the  Ignited 
States  are  in  no  sense  responsible  therefor,  any  more 
than  for  trespasses  to  ti'iy  other  complainants. 

A'll.  We  ask  now  what  evidence  would  prove  that  the 
United  States  invaded  the  possessory  rights  of  the  Com- 
pany? We  imagine  that  this  evidence  would  consist  of 
two  distinct  states  of  alleged  fact: 

,  First,  where  the  United  States  took  possession  of  some 
portion  of  land  claimed  by  the  Company ;  or,  secondly, 
permitted  donation  or  pre-emption  claims  to  be  located 
on  land  claimed  by  the  Company. 

1.  As  regards  the  first  point,  we  conceive  that  the  in- 
fringement by  the  United  States  in  taking  jiossession  of 
land  for  their  own  use  is  as  little  as  could  well  be  imair- 
ined  un<ler  the  s))C('ial  circumstances  of  the  case. 


ly^m 


20 


i'ilr 


I'l 

i!' 

>  i    , 

1;  ! 

*    1 

.J 

•'I'll    ^'il 


Tlic  L'nitc'd  States  ostiiblisliod  a  inilitiiry  post  at  Van- 
('C)iu  or.     But  this  was  done  with  the  consent  and  appro- 
l»ation  ot'the  C!!onipany,  and  was  eminently  advantageous 
to  them,  as  protection  a^'ainst  settlers,  and  as  furnishing  a 
mart  for  the  f>ale  of  their  goods  at  tliat  jx/int.     The  great 
\       '  valuation  the  Company  ni»,.  i)ut  ui)on  \"ancouver  is  al- 
\        most  entirelv  because  of  the  estahlishment  of  the  United 
I      States  post  there,  which  tended  more  than  anything  else 
to  make  it  a  commercial  point.     So  far  as  the  establish- 
ment of  the  United  States  post  at  Vancouver  is  concerned, 
then,  it  was  not  an  injury,  but  a  benefit  to  t.iC  Company. 

2.  Secondiv,  asto  the  next  form  of  alleij-ed  infringement 
of  the  possessory  rights  of  the  Company,  consisting  in  the 
United  States  permitting  persons,  under  the  (lonation  or 
other  laws,  to  locate  on  the  lands  claimed  by  the  Com- 
[tany,  we  submit  several  considerations. 

It  is  to  be  noted  that  the  donation  huv  expressly  ex- 
cepted from  location  lands  claimed  by  the  Company. 
This  is  an  important  fact  and  shows  the  great  anxiety  of 
the  United  States  to  have  the  "possessory  rights"  of  the 
Com[»any  respected.  It  was  .special  legislation  for  the 
peculiar  benefit  of  the  Company.  The  United  States 
were  not  content  to  be  passive  in  the  matter  of  protect- 
in<»:  the  riij-hts  of  the  Comr)anv,  but  tliey  took  the  most 
efHcient  and  active  step  by  positive  legislation  to  protect 
the  Comiiany  in  its  rights.  Under  this  law,  locations 
made  on  land  claimed  by  the  Company  were  null  ai  ' 
void  and  of  no  effect. 

The  Ignited  States  should  not  be  held  responsible  for 
the  lawless  acts  of  its  officers.  The  Uiuted  States  having 
exce[»ted  from  the  donation  laws  lands  claimed  by  the 
^  Company,  all  such  locations  were  void,  and  tlie  Company, 
by  taking  pro}>er  ste[is,  had  a  legal  remedy  within  their 
reach  to  prevent  these  unlawful  locations.  It  was  the 
duty  of  the  Com[>any  to  avail  itself  of  the  legal  remedies 
provided,  and  if  it  failed  to  do  so  it  was  in  default  and 
has  no  right  t(t  look  to  the  United  States  for  indemnity 
fir  los;-.cs  incuri'cd  b\-  its  ow  n  hu'lierr. 


21 


post  tit  Van- 
t  and  appro- 
idvantagcous 
I  fiirnisliiiiga 
:.  The  great 
couver  is  al- 
)!'  the  United 
mything  else 
the  establish- 
is  concerned, 
.iC  Company, 
infringement 
sisting  in  the 
>  donation  or 
by  the  Com- 

expressly  ex- 
le  Company. 
;at  anxiety  of 
riglits"  of  the 
ation  for  the 
.'nited  States 
er  of  protoct- 
jok  the  most 
ion  to  protect 
hiw,  locations 
vevQ  null  ai  ' 

^sponsible  for 
States  having 
aimed  by  the 
the  Company, 
-  Avithin  theii- 
It  was  the 
eijal  remedies 
n  default  ami 
for  indemnitv 


When  we  consider  the  indefinite  character  of  the  Com- 
pany's land  claims,  so  uncertain  that  its  chief  agents,  as  in 
the  case  of  Mr.  McTavish,  wore  unable  to  define  the 
boundaries,  we  should  be  prepared  to  look  with  great 
leniency  on  the  acts  of  subordinate  officers  of  the  United 
Btates  who  permitted  locations  to  which  the  Compaii}- 
take  exceptions. 

If  the  ['nited  States  are  held  responsible  for  the  nc- 
tioPis  of  its  officers  in  ]»ermittiiig  locations  on  lands 
claimed  by  the  Company,  then  we  submit,  that  an  im- 
portant inrjuiry  is,  whether  those  lands  thus  made  subject 
to  lo3ation  were  in  the  actual  occupation  of  the  Company. 
Tlie  Companv's  i-ights  arose  i'rom  i)Osses8ion.  If  thev 
reliufpiished  possession,  this  o[)erated  as  an  abandonment 
of  their  right,  and  the  land  so  abandoned  became  prop- 
tu-lj'  subject  to  location.  AVe  maintain  then,  to  establish 
any  claim  in  this  regard  against  the  Government,  they 
must  show  that  they  were  in  actual  occupany  of  the  land 
at  the  time  of  the  location  complained  of. 

Take  the  case  of  Vancouver.  The  Company  claimed 
possessory  rights  in  nearly  200,000  acres  of  laud.  They 
never  had  over  about  2,000  acres  in  cultivation,  the  resi- 
due they  pi'ofess  to  have  used  as  pasture.  After  tlie  treaty 
they  gradually  reduced  their  farming  operations  at  V^an- 
couver,  and  finally  cultivated  but  a  fragment  of  the  land 
originally  in  cultivation,  and  pastured  to  a  small  extent. 
This  oi)erated  as  an  abandonment  and  relinquishment  of 
their  possessory  rights,  and  the  lands  thus  abandoned  and 
relinquished  by  them  became  subject  to  location. 

The  same  state  of  things  existed  at  other  points  than 
Vancouver,  where  the  Company  claimed  possessory  rights, 
and  the  same  deduction  of  law  should  bo  made  in  refer- 
ence to  those  other  points. 

It  may  be  appropriate  to  notice,  in  this  connection, 
that  the  Company  seems  to  assert  that  the  United  States 
were  bound  to  enact  some  special  legislation,  or  to  do 
some  especial  acts   to  cause  the  possessorv  riirhts  of  the 


i  \m\T 


.10 


ilfi 


!!!!;;;;;  m 


Com[)uny  to  be  respected,  other  than  wliat  was  done. 
But  it  is  Hubriiitted  that  the  United  States  fully  performed 
their  duty  in  tliis  reo;}ird. 

In  the  tirst  [dace,  the  provision  in  the  treaty,  that  the 
"  possessory  riu'hts"  of  the  Company  should  be  respected, 
was  the  authoritative  declaration  of  a  treaty,  the  "supreme 
law''  upon  the  subject.  Whenever  a  treaty  disposes  of 
the  subject-matter  in  such  a  manner  as  that  the  courts 
can  take  notice  thereof,  it  executes  itself,  without  further 
lei::islation.  In  this  case,  the  treaty  says,  the  "possessory 
rights"  of  the  Coni])any  "shall  l)e  respected."  This,  it 
is  submitted,  is  the  law  of  the  case.  If  the  treaty  had 
said,  "Congress  shsdl  legislate  so  as  to  cause  the 'posses- 
sory rights'  of  the  Company  to  be  respected,"  then  the 
courts  could  not  enforce  the  treaty  in  tliis  regard,  without 
legislation.  But,  we  contend,  the  treaty  is  so  framed  as 
to  execute  itself. 

To  illustrate:  su[»pose  that  Congress  had  passed  a  law, 
in  the  terms  of  the  treaty,  ordaining  that  the  "possessory 
rights"  of  the  Company  should  be  respected.  Would  not 
the  courts  liave  felt  bound,  judicially,  to  enforce  this  res- 
pect by  api)ropriate  legal  remedies?  So,  in  this  ease,  the 
treaty  is  legislation  on  the  subject,  and  is  law  for  the 
courts,  and  the  Company  is  entitled  to  all  legal  remedies 
for  the  protection  of  its  rights  against  trespassers. 

When,  in  audition  to  the  provisions  of  the  treaty,  we 
remember  that  the  United  States,  by  special  legislation, 
excepted  from  the  donation  law  lands  claimed  by  the 
Company,  it  is  submitted  that  tVie  United  States  fully 
performed  the  obligation  they  had  assumed  to  respect  the 
"possessory  rights"  of  the  Company. 

If  it  be  said,  on  the  other  hand,  that  the  land  officers 
of  the  United  States  did  grant  titles,  under  the  donation 
laws,  to  settlers,  in  any  land  belonging  to  the  Company, 
{which  we  deny), — then  it  is  submitted  that,  if  the  grants 
of  title  thus  made  covered  lands  to  which  the  Company 
had  "possessory  rights,"  such   action  of  the  officers  of 


!;   ii 


.Ji 


23 


at  was  done, 
ly  performed 

aty,  that  the 
3Q  respected, 
he  "supreme 
y  disposes  of 
at  the  courts 
thout  further 
I  "possessory 
d."  This,  it 
le  treaty  had 
e  the 'posses- 
id,"  thou  the 
j;-ard,  without 
so  framed  as 

passed  a  law, 

3  "possessory 

Wouhl  not 

force  this  res- 

this  ease,  the 

law  for    the 

ejjal  remedies 

)assers. 

lie  treaty,  we 
al  legishition, 
limed  by  the 
1  States  fully 
to  respect  the 

;  land  officers 
L'  the  donation 
the  Company, 
t,  if  the  grants 
the  Company 
the  offioers  of 


the  land  office  was  void,  as  heinii,'  in  violation  of  the 
treaty  and  the  donation  laws,  and  the  persons  claim- 
ing under  such  titles,  as  against  tlie  Company,  were  mere 
trespassers,  and  the  United  States  are  not  responsible 
for  such  illegal  acts  of  its  officers. 

The  question  of  the  lialiility  of  the  United  States  for 
the  acts  of  its  officers,  has  been  very  fully  considered  re- 
cently in  the  Court  of  Claims  of  tlie  United  States,  in 
the  case  of  the  Floyd  Acceptances. — (T.  AV.  Peiree  vs. 
The  United  States,  1  Nott  k  JIuntington,  p.  270.)  And 
it  was  held  by  the  court,  that  the  United  States  are  not 
liable  for  the  acts  of  its  officers,  where  those  acts  are  in 
violation  of  law. 

So  far,  therefore,  as  the  Company  claim  that  their  "pos- 
sessory rights"  have  ])een  violated  by  the  United  States, 
through  tlie  action  of  the  officers  of  the  land  office,  in 
granting  titles  under  the  donation  laws,  it  is  submitted 
that  the  assumption,  that  such  acts  have  been  done  by 
the  officers  of  the  land  office,  necessarily  admits  that  such 
acts  were  illegal,  as  being  in  violation  of  the  supreme 
law  of  the  treaty,  and   the  donation  law  of  Congress. 

If  the  land  officers  m-anted  titles  to  lands  to  which  the 
Company  had  "possessory  rights,"  it  was  an  illegal  acton 
'  their  part,  for  which  the  United  States  were  not  respon- 
silile.  Against  such  illegal  action  the  Company  had  the 
same  remedy  as  any  holder  of  property  in  the  United 
States  had  against  illegal  trespassers.  The  United  States 
are  bound,  by  the  law  of  the  land,  to  respect  the  property 
rights  of  all  persons  within  the  United  States,  but  it  has 
never  been  imagined  the  obligation  rendered  the  United 
States  responsible,  in  damages,  for  the  illegal  action  of 
its  officers.  AVe  conclude,  therefore,  that  the  United 
States  arc  not  responsible  for  the  action  of  its  land  offi- 
cers, aft'ecting  the  "possessory  rights"  of  the  Company, 
such  action  being  in  violation  of  the  "supreme  law"  of 
the  treatv,  and  the  donation   laws  of  Congress. 


^es 


wmmmm 


tmm 


'\-W 


ililii;;;:ii 


24 

W  wo  !iro  correct  in  llic  jtroposit'ons  suhmittcd,  tlic 
(luestiou  of  (liiniagoH  is  reduced  witlilu  very  Hiiuiil  propor- 
tions. 

VIII.  As  to  tlie  (piestion  of  (hinuia:es,  we  propose  now 
to  submit  certain  considerations  as  detennininiji:  tlic  i)rin- 
<;iples  upon  wiiicli  they  sliould  be  estimated,  if  it  is  con- 
sidered that  any  case  is  made  for  (himages. 

1.  Damages  are  for  injury  to  tiie  "possessory  rights" 
of  the  Company,  in  land.  No  aUegation  is  made  of 
the  violation  of  the  possessory  rights  to  personal  prop- 
erty. The  case  is  tlierefore  coniined  to  the  "possessory 
rights"  of  the  Company,  "in  tlie  occupation  of  hind." 
"Possessory  rights,"  in  reference  to  land,  are  the  same 
things  as  "rights  of  possession"  to  land.  They  are,  it  is 
believed,  convevti}>le  terms,  and  mean  precisely  the  same 
thing. 

2.  AVhere  these  possessory  rights  have  been  invaded 
by  the  direct  action  of  the  United  States,  m  taking  pos- 
session of  land  in  the  occui)ancy  of  the  Company,  as  the 
instance  of  the  military  reservation,  established  at  Van- 
couver, we  submit,  that  this  is  not  to  be  regarded  in 
the  light  of  a  trespass,  but  as  a  legitimate  exercise  of  the 
right  of  eminent  domain,  and  the  Company  occupies  no 
otlicr  different  or  better  position  than  a  citizen  of  the 
United  States,  whose  property  is  taken  for  public  uses, 
which  the  Constitution  authorizes  to  be  done,  on  the  al- 
lowance of  "JuKt  compensation." 

This  "just  eonjpensacion"  is  carefully  detincd  in  the 
cases  of  Johnson  vs.  The  United  States,  2  Nott  k  Hun- 
tington, p.  31)1. 

Especially  is  this  principle  of  compensation  to  be  re- 
garded, where,  as  in  the  instance  of  the  nulitary  reserva- 
tion at  Vancouver,  the  occupation  is  made  by  the  United 
States  with  the  assent  and  at  the  re([ucst  of  the  Company. 

Furthermore,  where,  as  in  the  ease  of  the  reservation  at 
Vancouver,  the  C<Mnpafiy  is  largely  benetited  thereby,  in 


i 


liilli! 


J 


'jr, 


luittod,    thr 
luiU  propor- 


ti'oposo  now 

ii<>;  tlie  i)riii- 

if  it  is  con- 

sory  rights" 
18  iiuide  of 
rsoiuil  prop- 
"  possessory 
)ii  of  land." 
,re  the  same 
liey  are,  it  is 
ely  the  same 

)eeii  invaded 
1  taking  pos- 
ipany,  as  the 
shed  at  Van- 
regarded  in 
{creisc  of  the 
>'  oecupies  no 
jiti/en  of  the 
publie  uses, 
le,  on  the  al- 

L'lined  in  the 
Nott  ic  nun- 
tion  to  be  re- 
litary  reserva- 
by  the  United 
the  Company, 
reservation  iit 
od  therebv,  in 


the  great  a(hlition  made  to  its  gcniTul  trath',  tiiis  l)em'lit 
to  tlie  C,'oin[)aiiy  shouhl  be  eoiisich-rcd  as  an  eleineiil  to 
be  taken  into  (•oiisi(h'ratioii  loi"  reduction  of  (hiniages. 

i'.  As  danuiges  are  chiiined  for  viohition  of  "jios- 
sessory  rights,"  the  existenee  of  such  rights  dei»eiids  upon 
aetnal  occiipan.'y,  and  wliere  there  is  no  sueli  occupancy 
tliere  is  no  viohition  of  such  rights. 

4.  In  estinuiting  soeh  (hunages,  referenee  must  be  liad 
to  tiie  precise  period  at  wliich  viohition  of  tlie  possessory 
rights  took  jihiee.  Tlie  treaty  was  in  1840,  and  for  some 
years  after  the  treaty,  the  alleged  violations  of  possessory 
rights  did  not  take  place,  or  if  they  did  so  take  ]>lace, 
were  of  very  limited  extent.  Keferenee  should  be  had 
to  the  commencement,  ]U'ogress,  and  extent  of  such  al- 
leijed  violations. 

i).  In  estimatinir  damaiires  for  such  violations  of  possess- 
orv  riLchts,  it  is  essential  to  determine  the  duration  of  the 
possessory  rights  of  the  Com}»any.  And  here  it  is  conti- 
dontly  submitted,  that  such  ''[»ossessi  -y  rights"  could  not 
have  a  longer  duration  than  the  existence  of  the  Com- 
pany's license  of  trade.  The  moment  that  terminated, 
the  Company's  possessory  rights  to  land  were  at  an  end. 

It  is  perfectly  clear,  as  a  legal  proposition,  that  the  only 
legal  authority  the  Company  had  for  exercising  functions 
as  a  corporation  in  the  territory  south  of  tlie4t>th  parallel 
was  theUritish  licenseof  tra<le,  itsoi-iginal  charter  limiting 
its  operations  to  the  country  around  Baffin's  Bay.  When 
that  liceiise  ended,  the  Company,  so  far  as  this  territory 
was  concerned,  ceased  to  have  an\  rights. 

That  the  revocation  of  that  license  of  trade  in  1851), 
made  by  the  British  Crown,  was  lawful,  is  to  be  taken 
for  granted  in  these  proceedings.  To  suppose  that  the 
Com[)any  could  continue  to  function  as  such  after  the 
revocation  of  its  license,  would,  as  already  shown,  in- 
volve this  singular  condition  of  things, — that  it  could  be 
vital  in  the  United  States  when  it  was  dead  in  Bi-itish 
(-oluml)ia. 
4 


mSibsuaiauuuBassmi 


l'C 


W 


.1:1.  m 


'M 


Y 


\\Bv/m 


$iV,i 


Furtlicr,  if  its  durjitioii  was  not  liiniti'tl  I»,v  tlio  ntvtKui- 
tioii  of  its  liceiiHO  of  trade,  then  no  limit  could  be  as- 
signed to  its  existence  in  the  United  States,  und  it  woidd 
be  perpetual.  A  consecjuence  «o  unreasonable  shows 
that  the  existence  of  the  ('onipany  in  the  United  States  as 
u  funetioninii^cor}»oration,  needinii;  tlie  possession  f)f  land, 
and  hence  havinn' possessory  riu:hts,  nnist  bi>  limited  to  its 
license  of  trade. 

0.  It  is  submitted  further,  that  the  Company  cannot 
claim  damages  for  buildings  left  by  it  in  the  territory. 
The  Company  were  entitled  to  liave  tlieir  possessory  rights 
rcspe(!ted.  This  would  implv  a  right  to  compensation, 
where  those  rights  were  violated  during  their  existence; 
but  wlieii  the  possession  of  the  Company  ceased  in  hxw, 
in  1850,  they  no  longer  liad  any  possessory  rights,  and 
having  no  sucli  rights,  they  are  o""  course  not  entitled  to 
compensation  for  them.     The  p'lny  cannot,  in  any 

point  of  view,  be  regarded  in  a  n.-we  favorable  light,  so 
far  as  payment  for  improvements  made  by  them  is  con- 
cerned, than  licensee  tenant  for  term  of  years.  Such  li- 
censee tenant,  on  the  termination  of  liis  license  or  lease, 
is  not  etititled  to  be  paid  for  improvements. 

The  improvements  were  of  no  use  to  the  United  States, 
and  the  Company  had  been  free  to  sell  the  buildings,  at 
least,  for  their  own  benefit. 

(B.) — Vau'e  of  Posts. 

With  these  preliminary  observations,  we  now  propose 
to  consider  the  evidence  of  value  of  the  posts  mentioned 
in  the  memorial,  in  reference  to  which  the  Company 
claims  damages. 

We  would  remark  in  the  threshold,  that  the  evidence 
of  the  Company,  in  reference  to  these  posts,  is  taken  as  to 
their  fee  simple  value.  This  theory  of  estimation  we  con- 
sider entirely  erroneous,  because,  as  we  conceive  the  case, 
there  is  no  pretence  of  right  on  the  part  of  the  Company 
to  claim  a   fee  simple  title  \u   these  posts.       All  that  it 


I    n 


m 


J 


'21 


iild  be  iiH- 
(1  it  would 
bio  shows 
(I  States  i\A 
on  of  liiiul, 
nited  to  its 

any  caimot 
c  territory, 
ssorv  rii!:hts 
fipensation, 
•  existence ; 
ised  in  law, 
ri,ij:lits,  and 
;  entitled  to 
not,  in  any 
)le  light,  po 
liem  is  con- 
's. Such  li- 
lae  or  lease, 

iiited  States, 
buildings,  at 


low  propose 
s  mentioned 
le  Company 

the  evidence 
s  taken  as  to 
ition  we  con- 
eivc  the  case, 
he  Company 
All  that  it 


is  entitled  to  is  "iiosscssory  rights"  in  these  posts,  iind 
these  '"possessory  rights."  wo  conceive, are  limited  in  point 
of  duration  to  the  continuance  of  the  liceiis"  to  trade, 
or  in  other  words,  from  184<I  to  1S")J>.  And  any  valuation 
of  damages  must,  we  insist,  in  any  event,  be  restricted  to 
this  period  or  some  part  of  it. 

Before  treating  the  evidence  in  detail,  wo  invit<f  atten- 
tion to  the  unusual  high  standard  of  the  witnesses  intro- 
duced on  thejtartof  the  Tni ted  States,  on  this  general  (|Uos- 
tion  of  the  value  of  the  various  posts.  It  is  rarely  that  in 
anv  case  there  can  be  found  such  an  arrav  of  witnesses, 
whether  we  consider  their  high  character  or  their  intelli- 
gence. A  list  of  witnesses,  among  which  appear  such 
lumies  as  Vlysses  S.  Grant  and  1*.  II.  Shondan,  is  rare; 
men  whose  names  have  become  historical :  the  first,  called 
by  a  great  Republic  to  oe  its  ('hief  Executive. 

Then,  the  witnesses  for  the  United  States  are  free  from 
the  bias  of  interest.  On  the  part  of  the  witnesses  for  the 
Company,  it  is  to  be  remarked,  a  very  large  [lortion  are 
indeutitiod  in  interest  with  the  Com})any.  The  principal 
and  more  intelligent  witnesses,  as  Sir  dames  Douglass, 
Messrs.  McTavish,  Anderson,  Charles,  McDonald,  Mc- 
Kenlay,  Tugo,  and  W^ark  were  otHcers  of  the  Company, 
and  had  a  direct  interest  in  swelling  the  recoverv.  We 
do  not  need  to  sav  that  thev  knowiuglv  made  false  state- 
ments;  it  sutHces  to  say  that  tliey  are  the  very  parties  in 
interest,  speaking  under  a  bias,  which  almost  uncon- 
sciouslv  would  disturb  their  iudgnient. 

Others  of  the  witnesses  had  been  in  the  Company's  ser- 
vice, and  look  at  things  through  a  more  or  less  preju- 
diced medium. 

It  is  worthy  of  remark,  that  the  principal  portion  of  the 
Company's  witnCvSscs  iiave  had  more  or  less  close  atfilia- 
tion  with  the  Con>pany,  and  are  more  or  less  therefore 
prejudiced  in  favov  of  the  Company. 

We  shall  refer  to  this  point  more  particularly  hereaf- 
ti-r. 


'  (  "(Tr- 


m^^mmm 


■Is 


I     I 


I    > 
(    1 


T   1  I'i: 


1:ti;:.. 


TIkj  valuation  placed  on  tlie  various  posts  by  the  Com- 
pany's witnesses  startles  l)y  its  preposterous  extravaG^anee. 
Ert'ec'tual  refutation  of  this  valuation  is  fni-nished  by  the 
evidence  for  the  I'uited  States,  to  which  we  invite  atten- 
tion, and  to  wliioli  we  propose  to  add  a  Tew  brief  coni- 
nientaries. 

\'Ax\couvj:r. 

Aidveny  resi'ards  $20  an  acre  as  suffcient  for  640  acres 
at  A^a'^couver  now,  (1866,)  since  otlier  places  developed. — 
(U.  8.  Ev.,  pt.  1,  p.  56.)  All  the  bottom  lands  overflowed, 
more  or  less.  The  land  is  heavily  timbered. — (p.  08.) 
Farmers  on  ('oluml)ia  bottoms  have  not  prospered,  be- 
iiiii'  drowned  out  bv  floods. — ()).  oD.) 

Dcady  thinks  Company's  claim  at  A'ancouver,  without 
reference  to  improvimients  or  town-site,  \\ould  be  worth 
from  $1  to  8B  per  acre.— (U.  S.  Ev.,  pt.  1,  p.  100.) 

Llovd  Bi'ooke  values  640  acres,  includinii;  town-site  at 
Vancouver,  at  $20  an  acre. — (U.  ►<.  Ev.,  pt.  1,  p.  1.^1.) 
Values  the  mile  square,  inciudinii;  military  reserv(i  at  II. 
B.  Company's  post,  ])art  at  .i^lO  ah  acre,  part  less  than 
government  price. — (p.  lo2.)  The  Harney  place,  near 
the  reserve,  with  a  btiildiug  on  it.  costinii-  $2,000,  con- 
tainim^  110  acres,  oiiered  lor  .*2,000,  and  no  purchaser. — 
(p.  l-]2.'l  Mill  i)lain,  not  worth  more  thaii  government 
price.  It  '-■  "'ory  poor  tind  gravelly. — (p.  182.)  Two-thirds 
of  foui'th  plain  wouhl  bring  $5  per  acre.  The  wliole  of 
lower  })lain  worth  $20  an  acre.  Saw  no  gang  saw  in  the 
mill,  though  he  measured  lumber  therein  1840. — (p.  132.) 

Oidy  use'Com[)aiiy's  buildings  could  be  put  to  was  for 
storing  bay. — ([).  loo.)  Leased  the  mill,  in  1840,  for  a 
trifling  amount. — ([>.  I06.)  Cost  of  buildings  to  Com}»any 
tritling,  us  walls  were  of  refuse  lumber,  and  th<!  wages  [)aid 
were  a- pittance. — ([>.  1;»1».)  No  other  stock  than  slice]) 
could  be  kejit  for  any  length  of  time  on  the  plains  near 
Vancouver,  which  were  above  overflow. — (p.  141.) 

An  acie  of  laud,  in  forest,  back  of  X'ancouver,  could 
not    Ik*  thnroiiiiliK-   clcand    and    '.rrubbed    fop   h.^ss   than 


gr: 
gi- 


tlii 
\n 

tin 


•2fl 


y  the  Coin- 
ravaf^anec. 
hod  b;-  tho 
ivitc  atten- 
bi-icf  com- 


»r  640  acres 
iveioped. — 
overtlo\ve(l, 
l._(p.  58.) 
)spcred,  l»e- 

•er,  without 
(1  he  worth 
100.) 

town-site  at 
.  1,  p.  131.) 
3serve  at  II. 
•t  less  than 
place,  near 
$2,000,  eon- 
)urchaser. — 
government 

Two-thirds 
lie  whole  of 
g  saw  in  the 
.»._(p.  132.) 
It  to  was  for 

1840,  for  a 
to  Com}>any 
(!  wages  paid 
k  than  slieep 
L'  plains  near 
.  141.) 

■ouver,  could 
or  less  than 


<^150. — (p.  151.)  Doubted  about  \'aneouver  as  a  to\  n- 
site,  because  of  the  limited  extent  of  farming  land  near, 
and  the  shifting  of  the  bars  in  the  Cobunbia.  Buildings 
destroyed  by  nilitary,  were  utterly  worthless. — (p.  IhS.) 
The  Company  allowed  free  use  of  the  government  wharf, 
and  no  comparison  l)etween  it  and  Com[tany's  old  jetty. 
—(p.  156.) 

Buck.  In  1846,  no  buildiugs  on  Sauve's  island,  except 
two  snudl  log  cabins,  costing  iijjout  i^UW.  No  farming 
on  island.     Only  a  snudl  garden. — (p.  210.) 

Love.  Values  tlie  huid  on  Cohnnl)ia,  below  tlie  reserve, 
and  including  lower  plain,  at  C5  an  acre. — (p.  2;56.) 
\'alues  tlje  640  acres  of  reserve  at  $8  an  acre. — {\).  237.) 
A'alucs  town-site,  running  a  mile  back  from  the  i-iver,  at 
$50  an  acre. — (/6.)  Values  land,  along  river,  above 
reserve,  including  mill-site,  a  mile  in  width,  at  $2  per 
acre. — (//>.) 

Douthet.  Mill  built  by  Company,  in  1852,  was  worth- 
less, but  for  the  iron. — (p.  244.)  It  cost  more  to  keep 
the  mill  running  than  the  profits  amounted  to. — (p.  245.) 
Company,  in  1852,  quit  running  mill  because  it  was 
unprofitable.— (p.  245.)  In  1852,  saw  remains  of  old 
u-anii:  saw-mill.  It  looked  as  if  it  had  fallen  down.  Tho 
grist-mill  was  in  decay. — (p.  245.)  The  whole  value  of 
grist-mill  consisted  in  burrs  and  irons.  Comiiany  car- 
ried off  snnill  set  of  burrs  to  Vancouver  island. — (p.  245.) 
There  was  another  old  saw-mill,  which  had  been  aban- 
doned in  1852,  and  machiu'^ry  taken  out. — (//;.)  Com- 
pany's buildings  would  ouiv  be  useful  as  l)arns  or  sta- 
bles. They  had  no  valv).  Hinee  Company  abandoned 
them,  they  have  not  been  occupied,  except  Government 
used  them  to  put' hay  and  straw  in. — (p.  246.)  Thinks 
Company  took  doors  and  windows  away.  Taking  the 
first  afi  a  central  point,  1,020  acres,  exclusive  of  buil- 
dings, would  be  worth  $10  to  $15  per  acre.— (p.  247.) 
"\  alues  3,200  acres,  on  lower  plain,  having  frontage  on 
th(>  I'iver  for  five  miles,   at  $5  to  :?7  per  i\vn\  excbisiv'c  of 


liflYW' 


BES 


:{() 


!    ,1 


I      \ 


m 


improvements. — {ih.)  The  greater  portion  of  this  last- 
mentionc-d  land  is  subject  to  annual  overflow. — (p.  247.) 
Values  tract  below  the  last-mentioned  land,  ten  miles 
long  and  two  broad,  at  same  rate,  from  $5  to  $1  per 
acre. — (ib.)  Values  land  above,  including  town-site, 
running  6  or  7  miles  along  Columbia,  and  3  miles  wide, 
embracing  mill-plain  and  mill-sites,  at  $2  an  acre. — {ib.) 
Values  countrv,  back  of  tbe  first,  including  six  miles  in 
width,  at  ^2  an  acre. — (p.  ^48.)  Expense  of  clearing  and 
ditching  land  is  $f)0  an  acre. — (p.  24'J.)  Values  water 
privilege  at  grist-mill  at  from  ^1,000  to  $2,000.— (p.  2r,0.) 
Values  water-power,  at  saw-mill,  at  same  price. — [ih.] 
Overflow  spoils  the  grass. — (p.  251.)  Good  grazing  land 
can  be  got,  from  15  to  20  miles  from  Vancouver,  at  gov- 
ernment price. — (p.  255.) 

Applegate.  Found,  in  1866,  only  a  few  ruins,  of  no 
appreciable  value. — (p.  270.) 

Applegatos  values  640  acres,  embracing  tbe  town  and 
fort,  at  $50  per  acre.  The  640  acres  next  surrounding 
tbe  first  named  640  acres  at  $4  or  $5  an  acre,  and  tbe  re- 
mainder of  country  at  $1.25  currency,  ViO  cts  in  gold. — (p. 
279.)  Tbe  entire  tract  of  land  on  wliicb  Company's  post 
stood  lias  been  increased  in  value  50  or  $60,000  by  the 
establishment  of  a  military  post  and  a  town,  and  not 
from  Company's  miprovement. — (p.  270.) 

Kinearson  adopts  report  made  by  himself. — (Applegate 
and  Carson,  p.  817.) 

Carson  adopts  report  made  by  himself — (Applegate 
and  Kinearson,  p.  356.) 

Belden.  Engaged  in  surveying  railroads  in  Oregon. — 
(p.  380.)  Never  regarded  Vancouver  as  a  railroad  point, 
because  considered  the  south  side  of  Columbia  the  bettor 
side  for  railroads  from  tSnake  river  down  Columbia  val- 
ley.—(p.  300.) 

Gen'l  Ingalls.  Went  to  A'ancouvcr  in  1840. — (U.tS.  Ev., 
pt.  2,  p.  1.)  Very  small  part  of  claim  enclosed. — (p.  2.) 
The  proportion   of  the  whole  claim  really  occu[»ied  wa?^ 


to 
cc 
lai 
wo 

I'l 

wo 


tl 


up 

CO) 

bu 
the 
mi 

It) 


31 


of  this  last- 
V.— (r-  247.) 
I,  ten  miles 
5  to  $7  per 
2:  town-site, 
miles  wide, 
11  acre. — (ib.) 
six  miles  in 
clearinijand 
ralucs  water 

io._(p.  2r>o.) 

price. — {ilj.) 
li'raziiig  land 
liver,  at  gov- 

ruins,  of  no 

the  town  and 
surronndiiiu' 
e,  and  the  re- 
^  in  gold. — (p. 
•mpany's  post 
0,000  bv  the 
own,  and  not 

— (Applegatc 

. — (Applegato 

s  in  Oregon.— 
•ailroad  point, 
ibia  the  better 
Columbia  val- 

ty.__(U.t?.  Ev., 

losed. — (p.  -.) 

occu[>ied  was 


small. — (p. ^>-)  Buildings  very  dilapidated  in  IHGl. — (//>.) 
A'ancouver,  while  witness  was  there,  was  a  mercantile 
establishment;  Company  did  some  farming  and  bought 
sonic  furs,  but  was  really  engaged  in  general  trade. — (p. 
4.)  In  18(i0  the  buildings  were  of  no  value  to  the  United 
States. — (p.  5.)  The  military  authorities  would  rather 
have  had  the  ground  cleared  of  the  buildings. — {ib.) 

Settlement  of  country  brought  into  being  many  com- 
j)eting  trading  establishments,  in  competition  with  which 
Hudson's  Bay  Company  could  hardly  succeed. — (U.  S. 
Ev.,  Part.  2,  p.  0.)  The  fur  trade  gradually  fell  to 
nothing. — (ib.)  In  1860  land  in  town  of  A'ancouver 
was  worth  from  $100  to  |!1000  an  acre. — (p.  7.)  In 
1860  bought  ten  acres  in  town  of  A^ancouver  for  $1,000, 
and  lately  sold  it  for  the  same. — {ib.)  No  increased  value 
in  lands  at  Vancouver  from  1860  to  186-3.— (//>.)  Thiidvs 
it  im])rol)able  a  large  town  can  be  built  at  \  ancouvei*. — 
(p.  8.)  Thinks  land  would  at  one  time  have  sold  highev 
than  now. — {ib.)  Inundations  render  lands  near  \'ancou- 
ver  on  the  river  precarious  for  agriculture. — (10.)  Over- 
tlow  does  not  improve  rasturage. — (p.  14.) 

Gen'l  Grant.  The  inajority  of  the  bottom  land  subject 
to  overflow  in  June  and  July,  and  lor  that  reason  not  sus- 
ccittible  of  cultivation. — (U.  S.  Ev.,  i>t.  2,  ]>.  ID.)  The 
land  not  subject  to  overflow  was  [irincipally  densely 
wooded,  and  my  impresion  was,  it  was  very  I'oor.  The 
])lains  were  comparatively  snudl  prairies  in  this  densely 
wooded  country.  The  woodland  could  not  be  worth  any 
thing  to  the  Hudson's  Bay  Coni[>any  as  a  trading  post. 
— {ib.)  The  buildings  were  such  that  soldiers  could  j>ut 
up  rajddly,  the  materials  being  near  at  haixl. — (p.  21.) 

Senator  Xesmith.  The  stvle  in  whichl)  uildiuojs  at  Va!i- 
couver  built,  the  Canadian  style,  is  not  durable.  The 
buildings  in  1843  were  becoming  dila[»idated  on  account  of 
the  insufficiency  of  foundations. — (p.  23.)  l»uildings 
might  have  been  built  bv  the  commonest  kind  of  lal)or. 
Tn  the  last  ten  or  twelve  vears  the  huildiiiirs  have  L'"one  to 


I 

J 


fJli 


«'!■ 


(looay  very  rapidly,  and  wlieii  'witness  was  last  there  in 
1(S(I5,  tiiey  had  nearly  all  rotted  down. — (p.  24.)  Very 
slight  improvement  in  town  of  Vanconvcr  in  last  five 
years. — (p.  25.)  Does  not  believe  there  will  be  any  great 
improvement  for  many  years. — {ib.)  Portland  is  the  em- 
porium of  Oregon  and  East  Washington  ;  its  great  wealtli 
and  importance  will  prevent  a  town  of  conse(|uence  grow- 
ing np  at  Vancouver. — (p.  26.) 

Steinberger.  Owned  one-half  of  ten  acres  in  town  of 
Vancouver  at  most  valua])le  point  thinks  in  town ;  bought 
at  time  of  greatest  expectation  as  to  future  of  town,  cost 
$100  an  acre. — (p.  53.)  Thinks  this  property  of  less  value 
now  than  when  bouglit. — (ib.)  Vancouver  not  likely  to 
be  an  important  point. — (p.  53.) 

Wagner,  In  1<S57  buildings  old  and  some  very  mucli 
dilapidated. — (p.  59.)  In  1861  buildings  not  worth  over 
6  or  ^8,000. — (p.  60.)  Wharves  in  front  of  A^'ancouver 
would  not  accommodate  sea-going  vessels  except  in  liigh 
state  of  water. — (p.  62.)  Portland  has  destroyed  [)rospect8 
of  Vancouver. — [ib.)  Shoal  in  front  of  Vancouver  ren- 
ders it  ineligible  for  town-site. — (p.  67.) 

Howard.  Shoalwater  at  a  growing  shoal,  sufficient  to 
destroy  tbe^dace  as  a  town-site  forshipi»ing. — (U.  S.  Ev., 
2  pt.,  1).  60.) 

Barnes.  Jiuildings  utterly  valueless  in  1860,  except 
for  Company's  purposes. — (p.  70.)  As  one  of  a  board 
estimated  buildings  when  abandoned  by  Company  at 
$1)00.— ( p.  75.) 

Gen'l  McKeever.  As  memberof  board  valued  buildings 
at  A'ancouver  in  1860  at  about  $1,000.— (p.  78.)  Never 
valued  Vancouver  as  a  commercial  point,  because  no  back 
country;  the  forests  are  dense,  don't  think  it  would  pay 
to  clear  them. — (p.  79.)  In  1860  the  buildings  at  A^incou- 
ver  not  in  a  habitable  condition  ;  don't  think  any  one 
wanted  them  except  for  the  lumber. — (p.  81.)  First  board 
valued  certain  buildings  at  |i250. — (p.  82.) 

(ten'l  A.  .1.  Smith.     \'alued  buildinirs  in  1861  of  Coni- 


i 


on 


last  there  in 
..  24.)  Very 
I'  in  last  five 
be  any  great 
id  is  the  em- 
great  weal  til 
(luencegroAV- 

es  in  town  ot 
own ;  bought 
of  town,  cost 
^  of  less  value 
not  likely  to 

le  very  much 
it  worth  over 
if  Vancouver 
xcept  in  liigli 
yed  [irospects 
incouver  reii- 

,  sufficient  to 
.— (U.  S.Ev., 

1860,  except 
e  of  a  board 
Company   at 

ued  buildings 
,  78.)  Never 
cause  no  back 
it  would  pay 
ffs  atA'^ancou- 
link  any  one 
)    First  board 

1801  of  Com- 


pany inside  their  stockade  at  Vancouver  for  government 
purposes  at  $52-30. — (U.  S.  Ev.,  2  }»t.,  p.  84.) 

Judge  IS^elsou.  The  buildings  in  18r)2,  had  outlived  their 
day. — (p.  80.)  Thinks  Portland  is  to  be  the  great  ])lace 
of  Oregon. — (J.b.)  Dr.  McLaughlin  said  original  cost  of 
buildings  \vas  $100,000.— (//a)  McLonghlin  saia  before 
184G,  1,000  to  l,r>00  acres  under  cultivation.  Saw-mill 
and  grist-mill  tive  miles  up  river.  Cattle  pernutted  to 
stray  wliere  they  could  find  pasture.  Cultivated  land 
near  Vancouver,  the  rest  pasture.— (IJ.  S.  Ev.,  l*art  2d, 
p.  1)0.) 

Gen'l  Augur.  As  one  of  amilitary  board  in  1854,  valued 
Company's  buildinsrs  at  A'ancouver,  within  military  re- 
servation, at  $47,r)03.  The  board  valued  buildings  on 
basis  of  what  they  rented  for.— (p.  105.)  Col.  IJonneville, 
ofHcer  in  command  military  at  Vancouver,  endorsed  on 
valuation  of  buildings  in  i854,  "they  can  stand  a  short 
period  only  when  they  cease  to  receive  the  great  care  be- 
stowed upon  them." — (p.  lOG.) 

General  Hardie.  The  buildings  at  Vancouver  in  1860 
Avere  in  state  of  great  dilapidation  ;  not  worth  re[»air, 
having  no  value  except  as  hewn  timber  where  sound 
pieces  could  be  found;  very  much  of  the  timber  was  de- 
cayed.—(p.  107.) 

McFeely.  In  1858  the  buildings  at  \'ancouver  were 
old,  almost  uninhabitable,  the  material  being  rotten  from 
time  and  exposure.— (U.  S.  Ev.,  Pt.  2,  p.  110.)  Tlie 
buildings  were  of  no  value  to  the  United  States  in  1860; 
if  sold  at  public  sale,  doubts  whether  they  would  liave 
brought  n^,•re  than  the  value  of  the  land,  or  a  trifie  niore 
at  least.— (/6.)  Buildings  independent  of  the  land  would 
not  have  sold  for  over  4  or  $5,000.— (p.  128.) 

Gen.  Vinton.  Estimates  cost  of  buildings  estimated  at 
rate  of  wages  before  gold  excitement,  at  $70.— (p.  138.) 
Including  land  enough  for  buildings.— (p.  182.) 

Uen.Pleasanton.  Knew  Vancouver  1858-'.m;o.  Build- 
ings out  of  repair  and  dilapidated  :  huildings  were  rndc 


f) 


,..L.  ,111.11  jaw 


34 


(p.  135,)  \\^)nld  not  have  given  $10,U()0  lor  whole  estab- 
lishment.— {ib.)  Buildings  of  no  value. — (p.  186.)  Soil 
around  was  gravelly  and  poor. — {ib.)  The  great  objec- 
tion to  having  a  town  above  the  mouth  of  AVillamette 
river  was  the  bar  near  Vancouver. — (p.  137.)  Apart 
from  the  increase  to  the  town  of  Vancouver  from  trade 
of  the  soldiers,  the  town  made  no  progress. — {ib.) 

(xcneral  Sheridan.  In  18')')  buildings  had  decay  of 
old  age. — (p.  207.)  They  were  three-fourths  of  a  mile  from 
river  and  of  no  value  as  store-houses,  because  of  their 
location. — (p.  268.)  Actual  Avorth  of  buildings  but  lit- 
tle; no  market  for  materials. — {ib.)  The  two  store-houses 
near  the  river  the  only  buildings  witness  considered  of 
any  value ;  they  were  old  and  out  of  repair.^-(p.  260.) 

Admiral  Wilkes.  In  1841  estimated  CDst  of  buildings 
at$oO,000. — (p.  280.)  Mills  badly  located ;  incapable  from 
backwater  of  use  for  most  of  the  season. — (p.  281.)  Val- 
ued buildings  on  farms  and  Sauvies'  island  and  mills  at 
$6,000. — {ib.)  In  1841  officers  of  Company  chnmed  nine 
miles  square  at  A'ancouver. — {ib.)  Estimates  present 
value  of  the  tract  of  land  claimed  by  Company,  except- 
a  mile  square  around  post,  at  from  $1.25  to  $1.50  an  acre. 
For  fifteen  miles  the  land  is  submerged  for  live  miles 
wide,  nntit  for  crops.  Above  ])Ost  some  three  miles  like- 
wise submerged  ;  the  high  prairie  is  gravelly  and  thin. — 
(p.  282.)  About  eightv  s(piarc  miles  subject  to  overflow, 
-(p.  283.) 

So  far  as  the  opinions  of  witnesses  are  of  im[>ortance  in 
estimating  value,  it  is  obvious  that  the  opinions  of  the 
witnesses  for  the  United  States  are  of  more  value  than 
the  opinions  of  witnesses  for  the  Company  ;  for  they  arc, 
to  say  the  least,  witnesses  of  as  high  chiiracter,  of  equal 
intelligence,  of  greater  number,  and  free  from  any  bi.is 
of  interest;  in  which  latter  respect  they  have  a  great  ad- 
vantage over  the  principal  witnesses  for  the  Company. 

But,  fortunately,  there  are  material  facts  in  the  evidence, 
which  enable  us  to  form  our  own  estinuite  of  value  more 
satisfactorily  thiui  to  dc]iond  on  the  opinions   of  others. 


3r, 


.'hole  estab- 
136.)  Soil 
i,Teat  objec- 
Willamette 
r.)  Apart 
from  trade 
{ib.) 

id  decay  of 
a  mile  from 
se  of  their 
iiLfs  but  lit- 
<torc-hoiisea 
nsidered  of 
-{{).  260.) 
of  buildings 
•apablc  from 
281.)  Val- 
iiid  mills  at 
ilaimcd  nine 
itos  present 
any,  except- 
l.oO  an  acre, 
r  five  miles 
e  miles  like- 
and  tliin. — 
to  overflow. 

iiportance  in 
lions  of  the 
value  than 
for  they  are, 
er,  of  equal 
)m  any  bi.is 
e  a  great  ad- 
e  Company. 
;hc  evidence, 
f  value  more 

s    of    OtllOI'S. 


The  three  elements  of  value  in  regard  to  Vancouver  are, 
1st,  the  town  site;  2d,  the  buildings;  ->d,  the  lands. 

1.  As  regards  the  town-site.  There  is  nothing,  about 
which  persons  of  sanguine  temperament,  or  persons  in- 
terested in  particular  localities,  are  so  prone  to  build 
castlcH  in  the  air  as  the  speculation  of  town-sites.  And 
this  remark'  is  peculiarly  applicable  to  persons  in  the 
United  (States.  The  progress  of  the  country  has  l>een 
so  wonderful,  and  certain  commercial  points  have  grown 
with  such  startling  rapidity,  that  men's  imaginations 
run  wild  upon  the  subject.  Establishing  new  towns  is 
a  regular  business  in  the  new  territories.  The  im- 
posing title  of  city  is  frequently  bestowed  on  a  hamlet 
and  blacksmith's  shop  at  a  cross-road.  Here  and  there  a 
point  well  located  meets  with  great  success,  and  what  was 
but  yesterday  the  lodge  of  the  savage  is  to-morrow  the 
mart  of  busy  commerce.  The  comjtaratively  few  loca- 
tions which  succeed  are  remembered  and  commented  up- 
on, and  the  numerous  failures  are  forgotten.  The  new  ter- 
tories  are  covered  with  the  skeletons  of  intended  cities, 
which  ]ierished  in  the  hour  of  their  birth,  mementoes  of 
the  fallibility  of  human  Judgment  and  the  impossibility 
of  roadiuiT  the  future  with  certaintv. 

We  have  in  sight  of  the  Capitol  an  illustration  of  this 
folly  and  delusive  hope.  Under  the  administration  of 
President  Jackson  the  foundations  of  a  new  city  were 
laid  with  imposing  ceremonies  at  the  termination  of  the 
long  bridge,  on  the  A'irginia  side  of  the  Potomac,  to 
which  the  imposing  title  of  Jackson  City  was  given ; 
but  the  city  has  obstinately  refused  to  grow,  and  still 
exists  only  ujton  paper. 

It  is  not  surprising,  therefore,  that,  in  opening  a  new 
region  to  civilization,  as  the  valley  of  the  Columbia,  the 
imaginations  of  men  should  have  become  excited,  and  be- 
wildered with  the  idea  of  etnbryo  cities.  We  are,  there- 
fore, prepared  to  find  that  what  we  may  properly  des- 
ignate as  the  citv  mania,— tin   usual  lunacv  of  new  coun- 


•iww^ 


Ijllilljl 


m 

tries, — took  strong  hold  of  people  in  the  vulley  of  tlie 
Colnml)iu,  and  sites  for  future  cities  were  liberall}'  dis- 
covered along  the  river.  Tiio  Company's  agents,  at 
Vancouver,  were  not  slow  to  catch  the  infection,  and  Sir 
-lames  Douglas  and  Mr.  McTavisli,  and  otlier  ofHcers  of 
the  Company,  began  to  imagine  they  licard  tlie  chimes  of 
a  liundred  stee[>les  at  A'ancouver,  and  the  roar  of  a  vast 
current  of  liumanitv  pourinii"  into  it,  to  iiudce  it  the  Xew 
York  or  London  of  the  great  Pacific.  It  is  only  in  such 
a  condition  of  mind  that  we  can  discover  any  palliation 
for  the  extravagance  of  estimation  of  Sir  James  Douglas, 
Mr.  McTavish,  and  other  of  the  Com})any'8  officers, 
which  it  would  otherwise  be  necessary  to  impute  to  de- 
liberate misrepresentation  and  false  practice. 

Dut  the  facts  of  the  case  very  soon  pricked  this  bub- 
ble. 

In  the  tirst  place,  the  temporary  show  of  progress  at 
A^ancouver,  was  owing  to  the  military  reservation  being 
established  there.  This,  in  a  large  degree,  made  Van- 
couver what  it  was.  But  this  was  only  a  temporary 
matter,  and  could  produce  but  a  certain  limited  result, 
liable  to  end  at  any  moment  by  the  removal  of  the  forces 
stationed  there,  and  should  not  be  taken  into  consideration 
as  an  clement  of  permanent  growth. 

Nature  was  against  Vancouver  as  a  town-site. 

a.  There  w^as  no  back  country  to  support  a  town.  Tlie 
country  on  which  it  would  depend  for  support,  was  either 
subject  to  inundation,  or  overshadowed  by  a  continuous 
forest,  whose  vast  growth  defied  the  labor  of  civilization 
to  reduce  it  to  cultivation,  except  at  an  expense  so  enor- 
mous as  did  not  justify  the  undertaking. 

b.  The  bar  in  the  Columbia  impeded  navigation  to  such 
an  extent  as  to  render  Vancouver  unfit  for  a  commercial 
site. 

c.  Then,  Portland,  nearer  the  sea,  and  at  the  mouth  of 
the  Willamette  river,  possessed  such  superior  advantages 
that  it  entii'cly  ct-lipscd  Vancouver. 


i 


87 


alloy  of  the 
iborally  dis- 
5  agents,  at 
ion,  and  Sir 
er  oflieors  of 
ho  cliimos  of 
)ar  of  a  vast 
i  it  the  Xew 
only  in  such 
ly  palliation 
les  Douglas, 
iv's  officers, 
iiputo  to  de- 
ed this  bub- 

■  [)rogross  at 
vation  being 
,  made  Van- 
i  temporary 
mited  result, 
of  the  forces 
onsideration 

site. 

town.  The 
•t,  was  either 
II  continuous 
f  civilization 
LMise  so  enor- 

ation  to  such 
I  comniereial 

the  mouth  of 
r  advantatrcs 


(I.  Then,  the  south  side  of  the  Columbia  is  better  for 
railroads. 

Weighed  down  by  iidierent  disadvantages,  and  su])- 
])lanted  by  a  rival  more  favored  by  fortune,  Vanoouvor, 
then,  has  been  a  failure  as  a  town-site.  Tliis,  of  course, 
implies  a  corresponding  fall  in  the  prices  of  land  at  the 
place,  which  we  are  informed,  in  the  evidence,  has  been 
the  case. 

2.  As  regards  the  Company's  buildings  at  Vancouver, 
in  valuing  them  we  are  mot  with  several  stubborn  facts. 

a.  As  far  back  as  1H4>3,  according  to  the  evidence  of 
the  Hon.  Mr.  Nesmith,  the  buildings  were  dilapidated. 
This  condition  of  decay  of  course  increased  with  age 
and  the  neglect  of  the  Company,  until,  upon  the  even- 
tual  abandonment  of  the  buildings   by  the   Company, 

.  they  were,  as  the  evidence  states,  but  little  more  than  a 
mass  of  ruins. 

b.  Again,  it  is  in  evidence,  that  the  buildings  were 
unsuited  to  any  business  except  the  Company's.     They 

{  l)ossessed,  therefore,  no  exchangeable  value.     The  Com- 
l)any  had  no  further  occasion  to  use  them  for  the  oriirinal 

,  purposes  for  which  they  were  constructed,  and  no  one 
else  had  any  use  for  thorn.     They  were,  therefore,  of  lu) 

:;  value,  other  than  the  trilling  value  of  the  materials. 
And,  in  this  point  of  view^  it  is  immaterial  what  those 

.   buildings  cost.     The  question  is,  what  were  they  worth 
when  the  Company  ceased  to  occupy  them? 

3.  As  regards  the  lands  around  Vancouver. 

The  nature  of  those  lands  is  precisely  explained  to  us, 
in  a  few  words,  by  Gen.  Grant,  lie  says  "the  great 
majority  of  the  bottom  land  was  subject  to  overflow.  * 
""  *  That  not  subject  to  overtiow  was  »iousely  wooded, 
and  very  poor.  The  woodland  was,  I  think,  not  worth 
anything,  except  the  value  given  to  it  by  settlement."  In 
t'lese  few,  and  pointed  words.  General  Grant  lias  daguor- 
reotyped  the  country,  so  that  we  may  see  it  with  our  own 
joves. 


.)0 


I' 


til' 


f^ 


V 


a.  The  country  is  in  tliis  most  imibrtiiniite  roiidition  : — 
tlie  upliuids  lire  silinost  univorsally  covered  with  heavy 
and  dense  forests,  wortli  nothinsjj  as  mere  timber,  owiny 
to  the  cost  of  transportation,  and  so  expensive  to  clear, 
especially  as  the  hind  when  cleared  was  very  i)Oor,  that  it 
is  ruinous  to  clear  it.  In  short,  in  these  vast  forests 
around  Vancouver,  as  iti  the  forests  of  the  Amazon,  na- 
ture seems  to  raise  insurmountable  obstacles  to  the  pro- 
gress of  human  settlement.  Forests  seem  to  frown  aus- 
terely on  civili/ed  man,  and  appear  to  repcll  cultivation. 

h.  The  lowlands  are  subject  to  oversow  during  the 
summer  months.  The  water  at  the  time  of  overflow  is 
cold,  between  40  and  00  degrees,  a  temiterature  unftivora- 
ble  to  vegetable  nuitter,  and  the  deposit  is  not  fertilizing, 
being  sand  produced  by  attrition  of  rocks.  Half  the 
country  is  permanently  occu[tied  by  sloughs  and  ponds. 
The  overflow  is  neeessarily  ruinous  to  agriculture,  as  it 
often  continues  from  May  until  August.  It  also  injures 
the  grass,  which,  there,  has  less  time  to  grow  in,  and  is  de- 
8tro3'ed  during  the  best  growing  months  of  the  year.  It 
is  difHcult  to  estimate  the  injury  caused  by  the  annual 
inundations. 

In  view  of  these  facts,  we  are  not  suri>rised  to  learn  that 
the  settlers  in  the  bottoms  have  not  prospered.  It  would 
be  very  strange  if  they  did. 

c.  The  mill  was  built  in  1841)  for  a  trifling  amount. 
Ilunning  of  the  mill  did  not  pay  expenses.  The  mills 
were  badly  located,  subject  to  the  influence  of  the  over- 
flow of  the  river,  and  thus  liable  to  long  stoppages. 

From  a  consideration  of  these  various  controlling  facts, 
wdiich  are  indisputably  established  by  the  proofs,  it  is 
evident  that  a  very  low  valuation  must  be  placed  on  the 
Company's  claim  at  Vancouver. 

Cowlitz. 

It  is  difMcult  to  see  ^^  hy  the  Company  should  claim  any 
thing  for  this  post. 


00 


(.'Oiulition  : — 
3(1  with  hoavv 
imbcr,  owiiiu' 
sive  to  clear, 
y  poor,  that  it 
3  vatst  forests 

Amazon,  mi- 
les to  the  pro- 

to  frown  aus- 
sll  cultivation. 
\x  during  the 
of  overflow  in 
ture  unfjivora- 
lot  fertilizinii', 
ks.  Half  tlie 
hs  and  ponds, 
riculture,  as  it 
it  also  injures 
'  in,  and  is  de- 
'  the  year.  It 
by  the  annual 

d  to  learn  that 
•ed.     It  would 

itling  amount, 
es.  The  mills 
le  of  the  over- 
■itoppages. 
ntroUing  fact:^. 
e  proofs,  it  is 
I  placed  on  the 


ould  claim  anv 


1.  The  Company  were  not  disturbed  in  their  occupa- 
tion. 

2.  It  became  of  no  use  to  the  Company. 

J3.  I'art  of  the  buildings  were  v/ashed  away,  the  re- 
mainder sold  by  Company. 

Tolmie.  Warehouses  at  Cowlitz  no  longer  of  use  when 
nothing  raised  at  Cowlitz  farm;  one  was  destroyed  by 
caving  in  of  the  bank,  the  otlier  was  sold  by  Company's 
agent.— (U.  S.  Kv.,  i)t.  1,  p.  104.) 

Huntington.  Buildings  i)ulled  down  and  used  by  wit- 
ness. Bought  them  from  an  agent  of  Comi)any  for  $75.— 
(p.  39.5.) 

Howard.  Post  was  being  washed  awav.— (U.  S.  Ev., 
pt.  2,  p.  68.) 

Wilkes.  No  station  of  Company  at  Cowlitz  in  1841. 
— (p.  277.)  The  place  is  low,  and  subject  to  overflow 
from  both  rivers. — {il>.) 

('.  T.  Gardner.  Conipany  had  a  store  there;  it  was  a 
log  house  about  30  by  15.     Xo  wharf.— (p.  325.) 

McTavish.  Company  not  disturbed  in  its  occupation 
at  Cowlitz  post.— (Miscellaneous  Ev.,  p.  155.) 

Fort  (jeoiuje. 

It  appears,  from  the  evidence,  that  the  Company  is  en- 
titled to  nothing  here. 

1.  The  Company's  buildings,  at  Fort  George,  were 
worth  but  a  tritle  in  184G. 

2.  That  the  Company  abandoned  the  post  in  1846  or 
1847,  and  that  the  buildings  rotted  down,  and  were 
removed. 

3.  Buildings  dilapidated  in  1841  and  1844. 

Gray.  Buildings  worth  nothing  in  1846.  Company 
left  them  in  1846  or  1847,  and  they  rotted  down,  and 
were  removed.— (r.  iS.  Ev.,  pt.  1,  p.  166.)  Two  acres, 
round  old  fort,  worth  $1,000.  In  1846,  worth  half  this 
sum. — (p.  167.) 


;  '  ^ilffyfTii" 


-10 


Suininors.  l)Mil(Vm.2:s  in  184(1,  wortli  .*?')()().  Two 
acres  of  land,  round  tlio  fort,  worth  .<?100  an  aero. — (j». 
im.)     In  1850,  buildings  at  worthless.— (p.  194.) 

Taylor.  Buildings,  i^i  184(5,  worth  from  W^O  to  $700. 
— (p.  1!>7.)  Land  occupied  by  Fort  worth,  in  1840,  .$10(1 
to  $150  an  acre. — (p.  108.) 

Welch.  In  184t),  buildings  old,  scarcely  fit  to  live 
in,  worth  from  $500  to  $800.  Land  at  fort,  two  acres 
cleared,  cost  about  $300  an  acre  to  clear  it. — (p.  208.) 
Buildings  rotted  down  partly,  renuiinder  occupied  by  In- 
dians, who  destroyed  them. — (p.  204.) 

Nesmith.  At  Fort  George,  in  1844.  There  were 
then  two  or  three  old  buildings,  and  small  patch  of 
enclosed  ground;  buildings  dilapidated,  they  might  have 
been  worth  $100  or  $200.  A  village  has  sprung  up  below 
old  post.— (T.  K.  Ev.,  pt.  2,  p.  29.) 

Nelson.  McLaughlin  says  Couipany  had  post  at  in 
184(J;  no  farm — a  garden. — (p.  100.) 

Admiral  AVilkes.  Post  dilapidated  Ui  lh4l. — (p.  275.) 
Two  acres  enclosed. — [ih.) 

Buildings  cost  $500  or  $000,  and  the  two  acres  en- 
closed worth  $20  or  $25  an  acre. — [Ih.) 

Gilpin.  In  1844,  only  a  single  building.  Only  trade, 
salted  salmon.  Values  buildings  at  $1,200  to  $1,500.— 
(p.  339.) 

Swan.     In  1852,  no  vestige  of  any  post  here. — (p.  243.) 

Feale.  Buildings  at  in  1841,  worth  not  over  $500  or 
$000.— (p.  345.) 

Gibbs.  In  1849,  buildings  four  in  number,  common 
log  huts,  ver\'  much  out  of  repair.  Company  had  aban- 
doned it  as  trading  post.  In  1850,  Maj.  Hathaway  put 
buildings  in  some  repair. — (p.  400.)  Company  never 
occupied  post  after  Maj.  Hathaway  left,  in  1851,  and 
buildings  rotted  down,  or  were  torn  down  by  claimants 
of  the  land. — (p.  401.)  In  1853,  buildings  of  no  value.— 
(ih.)     No  Indian  trade  there  in  1850. — {ih.) 


^ 


1 


^rm.    Two 

xi\  acre. — (p. 
1!>4.) 

S;500  to870o. 

inl840,  .l^lno 

Iv  tit  to  live 
I't,  two  acres 
it.— (p.  208.) 
Mipied  by  Iii- 

Tliere  were 
lall  patch  of 
y  niiglit  have 
ing  up  below 

1(1  post  at  ill 

41.— (p.  275.1 

Avo  acres  eii- 

Only  trade, 
)  to  $1,500.— 

ire.— (p.  248.) 
;  over  $500  or 

ber,  common 
my  bad  abaii- 
rlatbaway  put 
nipany  never 
in  1<S51,  and 
by  claimants 
>f  no  value.— 


41 

Chinook  or  Pii,i,aij  Iiock. 
It  ai)pears  that  iiotlnng  is  clainjable  lioi'o. 

1.  The  Company  never  occnpied  this  station. 

2.  In  1840,  the  buildings  were  worth  about  $1(10,  and 
the  land  so  valueless  as  not  yet  to  he  taken  up  at  gov- 
ernment price. 

Tolniie.  Fishing  shition  not  oceujiied  by  Conipanv.— 
(U.  ►S.  Ev.,  pt.  1,  p.  100.) 

Gray.  Was  at  Chinook  in  1844  and  1840.  Saw 
nothing.'  thei-e  but  tein[)orary  sheds,  and  a  ivw  tanks  for 
salting  salmon.  Comi)any  abandoned  it  in  1840  or  "48. — 
(p.  105.) 

Taylor.  Building  worth  about  $100  in  184!>.— (p.  100.) 
Land  at  not  worth  over  government  price,  as  no  one 
has  taken  it  up. — (p.  100) 

Welch.  In  1840,  buildings  worth  $:]()()._(p.  :i04.) 
It  did  not  cost  that  much.— (//y.)  Land  worth  nothing, 
except  as  lisbing  station. — (p.  205.) 

Wilkes.  Company,  in  1841,  had  no  station  nearrillar 
Rock.— (U.  S.  Ev.,  2  pt.  p.  277.) 

Gibbs.  Kever  knew  of  Company  occupying  station 
there  or  claiming  it.  In  1850,  it  was  occupied  by  llensill, 
American  citizen.— (p.  402.)  Oidy  building,  a  drying 
shed,  such  as  Indians  are  in  habit  of  constructing  for  their 
own  use. — (p.  402.) 

Cape  Disaitointment. 

It  appears  from  the  evidence  that — 

1.  The  Company  had  no  possessory  rights  of  any  kind 
at  or  near  the  Cape  in  1840  or  prior  thereto.  Such  being 
the  case  the  Company  have  no  claim  in  regard  to  this 
locality. 

2.  The  building  occupied  by  Kipling,  the  only  build- 
ing the  Company  appear  to  have  any  claim  to,  was  more 
than  a  mile  from  the  Cape. 

8.  The   only   possessory    rights    the   Company    could 
possibly  have  to  a  location  near  the   Cape,  and  that  ac- 
0 


■  ||iii[ii:r';'ir 


42 


||!|l|i'i1' 


(luircd  after  1S40,  is  to  tlio  KipHiii;:  lionso  and  tlio  spot 
of  land  on  winch  it  was  built.  The  valuation  of  this 
houBO  and  spot  of  ground  is  insignificant. 

4.  ^.1  no  event  would  land  taken  for  government  pur- 
])o,es  be  valued  at  speculation  prices.  A  fair  and  rea- 
sonable valuation  would  be  the  correct  I'ule. 

Gray.  Was  at  Cajte  Disappointment  in  1(S44  and  1846. 
Buildings  cost  about  ^SoO.OO.— (U.  S.  Ev.,  pt.  1,  p.  107.) 
G40  acres  round  worth  nothing  for  agricultural  purposes. 
If  worth  anything  witness  would  have  occupied  it. — (ib.) 
House  built'after^846.— (p.  186.) 

Summers.  McDaniel,  in  1845  or  46,  took  claim. 
Wanted  witness  to  draw  deed  for  it  to  Mr.  Ogden. — (p, 
193.) 

Taylor.  In  1851  saw  building  there,  said  to  have  been 
put  up  for  Mr.  Ogden.  It  was  unfinished.  Cost  be- 
tween $200  and  ,§:300.— (p.  199.)  640  acres  of  land 
would  not  be  worth  over  $1.25  an  acre. — (ih.) 

Xesmith.  Was  at  Cape  in  1849.  Saw  nothing  but 
some  Indian  huts. — (U.  S.  Ev.,  pt.  2,  p.  30.)  Knows  of 
no  value  for  this  place  but  lor  light-house  and  fortifica- 
tions.— (ih.) 

Steinberii'cr.  In  1850  saw  an  old  buildinc;  of  verv 
little  value.     A\'rv  little  cleared  land  around  it. — (p.  53.) 

Ilowjird.  Saw  nothing  at  Cape  in  1853  but  a  fish- 
house. — (p.  68.) 

Nelson,  McLoughlin  said  Company  established  post 
there  in  1847.  Ogden  took  claim  there. — (U.  S.  Ev.,  pt. 
2d,  p.  100.; 

AVilkes.  Ir.  1841  no  post  or  building  or  person  at 
Cape.  Five  hundred  dollars  would  be  a  high  price  for 
land  for  fort  and  light-house. — (p.  277.)  Light-house 
only  useful  to  indicate  position  of  Cape  at  night,  not  for 
entering  river. — (p.  290.) 

Davidson.  In  1851  would  not  have  paid  governmeiit 
price  for  land.  Saw  no  indications  of  occupation  hy 
Company.— -(p.   307.)     Land  for  lightdiouse  not  wortii 


■§ 


13 


1(1  tlio  spot 
tiou  of  this 

nmcnt  piir- 
lir  luul  rea- 

44  and  1846. 
t.  1,  p.  167.) 
•al  purposes, 
led  it. — (ib.) 

took  claim, 
Ogdeii. — (p. 

to  have  been 
I.  Cost  be- 
res   of   land 

) 

nothing  but 

I     Knows  of 

md  fortifica- 

ing  of  very 
[  it.— (p.  53.) 
3  but  a  lish- 

,blished  post 
IT.  S.  Ev.,  pt. 

or  person  at 

gh  price  for 

Light-house 

ight,   not  for 

government 
scupation  by 
se  not  wortli 


over  governnuMit  ]trico.— (p.  308.)  Land  enough  lor 
liglit-house  not  wortli  over  $10.— (/A.)  Entrance  of  Co- 
luml)ia  niost  dangerous.  Knew  of  vessel  lvin<«'  oH'  40 
days  })efore  entering. — (p.  300.) 

Harrison.  Surveyed  Cape  ir  1851.  Saw  no  l)uildin<rs 
or  ruins  or  cultivated  land.  Land  not  wortli  goveriiincnt 
jirice.- (p.  313.)  About  3  or  4  acres  needed  for  light- 
house. Worth  for  public  use  government  j)rice. — (p.  3>i4.) 
Kipling  living  in  log  house  worth  considerably  less  than 
.^1,000.  Light-house  important  only  to  hold  on  by  at 
night,  —(p.  315.)  Donbts  whether  Cape  proper  place  lor 
light-house. — (p.  317.) 

Swan.  Visited  leaker's  Bay.  Never  Heard  of  any 
claim  at  Cape  by  Company. — (p.  343.) 

Peale.  Xo  tract  at  Cape  containing  640  acres  tit  for 
cultivation.— (p.  344.)  In  1841  no  building  or  prepara- 
tion for  l)uildinii'. 

McMurtrie.  Visited  a  house  in  1850  a  mile  or  more 
from  Cape  or  Baker's  Bay,  said  by  the  man  in  charge  to 
iiave  belonged  to  Comitany.  This  house  of  hewn  logs, 
30  l)y  20,  one  story.  Could  not  have  cost  over  $300  or 
i?400. — (p.  373.)  Saw  no  cultivated  ground  about  this 
house. — (ib.)  Xo  value  could  be  attached  to  the  laml  on 
Ciipe. — {lb.) 

Gibson.  Cape  rocky,  with  thin  soil  in  most  places. 
Land  valueless  except  for  timber,  of  which  country  is  full. 
Saw  small  house  some  distance  from  Cape.  House  not 
worth  over  $500. — (p.  376.)  Light-house  important  to 
make  and  hold  on  by,  but  light-house  at  Point  Adams 
more  important. — (]>.    i76.) 

Gibbs.  Never  saw  or  knew  of  trading  post  of  Com- 
pany.— (p.  402.) 

McTavish.  Umible  to  say  whether  C-ompany  had  done 
anything  at  Cai)e  befor<  1846.  Found  Kipling  there  in 
1846,  "in  a  kind  of  log  cabin." — (Miscellaneous  p]v.,  }). 
157.) 


I  '  I"!  I  nil 


^\^T 


44 


IV:' 


CuAMPOKli. 

It  appears  from  tlic  evidence — 

1.  That  tlie  buildings  Avere  washed  away  and  rotted 
down.  lender  tljis  state  of  facts  the  possessory  rights  of 
the  Company  in  tlicsc  buildings  are  of  no  value. 

2.  Tlie  land,  after  the  flood,  is  only  valued  at  ^5  an 
acre. 

3.  The  Company  claim  for  certain  lots  purchased  of 
American  settlers.  This  item,  it  is  submitted,  does  not 
come  vv'ithin  the  provisions  of  tbe  treaty. 

Buildings  washed  away  or  rotted  down. — (U.  S.  Ev., 
pt.  1,  p.  19.  Lovejoy's  ev'd.)  Thinks  $2,500  or  $3,000 
would  build  the  buildings. — {ib.) 

Buck.  In  1850  buildings  could  be  built  for  $2,000.— 
(p.  212.)     Buildings  washed  away  in  1801. — {ih.) 

Appcrton.  In  1858  buildings  not  worth  over  $4,000. — 
(p.  211>.)  Buildings  washed  away. — (p.  211).)  Land  at 
landing  not  worth  over  $50  an  acre,  ami  after  the  iiood 
not  worth  over  $5  an  acre. — ([).  210.)  Buildings  not 
worth  over  $1,500  or  $2,000  when  washed  away. — (p. 
220.) 

Barlow.  In  1846  cost  of  erecting  the  buildings  would 
have  been  from  4  to  $5,000. — (p.  223.)  Buildings  rotted 
down  and  washed  away. — {ib.)  The  value  of  the  build- 
ings in  18»)1,  before  being  washed  away,  from  $1,000  to 
$1,500.— (p.  224.) 

Kesmith.  In  1844  there  was  a  small  dwelling  house, 
granary,  and  small  store;  cheap  rough  buildings. 
Buildings  might  have  been  i)ut  uj)  for  $1,000  or  $1,500. 
Land  not  valuable.— (U.  I?.  Ev.,  2d  pt.,  p.  20.) 

Xesmith.  Cliampoeg  of  no  future  imi)ortance. — (U. 
S.  Ev.,  i>t.  2,  p.  29.) 

Wilkes.     Comi)any  had  no  station  in  1841. — (p.  278.) 

Gilpin,  in  1844  saw  no  buildings  but  sheds.  Did 
not  understand  the  Company  liad  station  there.  It  was 
used  only  as  a  landing  place. — (p.  335.) 


185 
ran 
niei 
vail 

,  (p. 

i  i)v 


\ 


11(1  rotted 
,-  rights  of 
e. 
at  $5  an 

•chased  of 
,  does  not 

U.  S.  Ev., 
or  $3,000 

•  $2,000.— 

r  $4,000.— 

Land  at 

the  Hood 

klings  not 

away.— (p. 


higs  would 

injjs  rotted 

the  bnild- 

1  $1,000  to 


ling  house, 
buihlings. 
or  $1,500. 

) 

taiico. — (U. 

-(p.  278.) 
(heds.     Did 
ire.     It  WiiH 


45 


Umpqua. 

It  appears  from  the  evidence — 

1.  That  this  post  was  abandoned  by  Company  during 
Indian  war,  and  never  re-occupied.  This  failure  to  re- 
occupy  the  post  shows  it  must  have  been  of  little  or  no 
value  to  the  Company. 

2.  The  barn  and  otlier  buildings  were  burnt. 

3.  A  house  was  built  by  Chapman  at  Umpqua,  which 
should  not,  it  is  submitted,  be  taken  into  consideration 
in  estimating  value  of  the  post,  as  it  w^as  built  since 
184G. 

AV.  W.  Chapman.  Rented  Umpqua  post  in  1853,  at 
$100  or  less.— (U.  S.  Ev.,  pt.  1,  p.  11.)  About  30  or  40 
acres  enclosed  at  this  post. — (p.  12.)  Some  of  the  build- 
ings destroyed  by  tires  which  raged  in  that  region. — (p. 
13.)  Values  buildings  at  U.  at  about  $200. — (p.  13.) 
Thinks  land  claimed  by  Company  never  worth  over  $10 
per  acre.— (p.  14.)  Thinks  $10  would  have  been  a  high 
price. — (lb.)  In  1861-2  a  Hood  washed  out  lower  Ump- 
qua.— (p.  15.)  Gov.  Gibbs  values  buildings  at  $1,500. — 
(U  S.  Ev.,  pt.  1,  p.  22.)  Values  land  claim  at  $5  an 
acre.— {[().)  Gov.  Gibbs,  in  1851,  sold  claim  of  320  acres, 
about  80  acre']  of  it  as  good  as  Umpqua  claim,  about  1.1 
miles  from  Umpqua,  for  $250. — (p.  24.) 

Tolmie.  Umpqua  abandoned  after  Indian  war. — (p. 
100.)  And  the  post  was  not  afterwards  occupied  because 
Indians  put  on  it  as  reservation. — (p.  104.) 

Deady.  040  acres  around  Umpqua  would  have  sold, 
from  1853  to  1860,  at  from  $1  to  $4  per  acre.— (p.  108.) 

Applegate.  Surveyed  section  of  land  at  Umpqua,  in 
1850  or  51,  for  Company.  Cattle  not  confined  in  their 
range  to  this  section.  This  section,  excluding  improve- 
ments, worth  now  $2  an  acre.  No  improvements  of 
value  remain.  Barn  and  other  improvements  l)unit. — 
(p.  266.)  A  house  worth  $400  or  $500  was  built  diere 
l>y  Chapman,  still  standing.— (]».  267.)     The  section  of 


It 

I 


I:. 

!■* 

11., 

I 

i 


I 


■  I    "■i'm 


^T; 


!■•>  ■    iwmm^^immmmirmmmt 


•lii 


111* 


r 


4i> 

land  at  Ump([ua  and  its  inipioveinents  might  have  been 
sohl  ill  1850  at  from  3  to  $5,000.— (p.  281.) 

Nelson.  McLoughlin  said  post  established  in  1884. 
Limited  degree  of  agriculture  there  for  use  of  post.  Some 
cattle,  pigs,  and  brood  mares  sent  there. — (U.  S.  Ev.,  pt. 
2,  p.  100.') 

ITuntington.  Umpqua  has  no  connection  with  Cali- 
fornia trail. — (p.  146.)  Between  100  and  150  acres  culti- 
vated land. — (p.  147.)  Thinks  buildings  cost  $1,000. 
hi  1850  buildings  much  dila}>idated,  worth  nothing  to 
any  one  but  Company. — (p.  148.)  Buildings  did  not 
average  more  than  8  feet  to  eaves. — (p.  154.)  Good  land 
in  Umpcpia  valley  worth,  unimproved,  $2  to  $4  an  acre. — 
(p.  155.)  Farms  in  valley  sold,  with  dwellings  and  largo 
part  of  land  fenced,  from  $3  to  $5  an  acre. — (p.  155.) 
Stock  ranged  on  public  land;  no  one  thought  of  j)aying 
for  grass. — (p.  150.)  The  cost  of  Indian  labor  to  Com- 
pany a  mere  nothing;  they  were  subsisted  on  potatoes 
and  salmon,  and  paid  in  trinkets  and  clothing  at  most 
enormous  prices. — (p.  162.) 

Dr.  Thompson.  In  1852  buildings  dilapidated;  some 
had  fallen  down. — (p.  218.)  One-half  land  around  wa?: 
good.  A  mile  square  around  the  post  worth  from  $2,000 
to  $2,500. — (?Y>.)  Iload  to  California  passed  on  opposite 
side  of  river. — [ih.)  Farm  is  only  valued  now  at  $1,500. — 
(p.  219.) 

Gov.  Gilpin.  Informed  in  1844  that  trade  diminish- 
ing.—(p.  336.) 

Dowell.  In  1852  buildings  not  worth  over  $500. — (p. 
358.)  A  mile  s((uare,  in  1852,  would  have  sold  for  $1,500 
or  $2,000.     Present  value  not  as  great. — (p.  359.) 

Destroyed  by  fire  about  1851. — (Gov.  Stevens'  Rep., 
Miscellaneous  Ev.,  p.  223.) 

N'ez-Perces  or  "Walla-Walla. 

It  appears  from  the  evidence — 

That  the  Company  sold  the  old  fort  in  1860  foi 


$900. 


I 


;ba 
ill! 
J  str 
':  val 

I  (p. 
I  stH 

I 


■il„.;*n| 


m 


t  have  been 

ed  ill  1834. 
post.  Some 
T.  S.  Ev.,  pt. 

i 

1  with  Ciili- 

0  acres  ciilti- 
co8t  $1,000. 

1  nothing  to 
nirs  did  not 
I  Good  hind 
$4  an  acre. — 
igi?  and  hirgo 
I'e. — (p.  I'')'').) 
ht  of  payini,^ 
bor  to  Coni- 
[  on  potatoes 
thinir  at  most 

i dated;  some 
I  around  was 
h  from  $2,000 
[  on  opposite 
w  at  $1,500.— 

ide  diminish- 

/er  $500.— (p. 
5old  for  $1,500 

.  359.) 
Stevens'  Rep., 


\. 


irt  in  18(30  for 


o 


Tliatin  18G2  tlie  bnildini^s  were  almost  entirely  de- 
stroyed. 

8.     WaUuhi  lias  been  superseded  by  Umatilla. 

Aukenv.  G40  acres  of  land  there  worth  not  over  $1.25 
per  acre. — (U.  S.  Ev.,  pt.  1,  p.  44.) 

Meek.  Soil  sand  and  <rravel,  worth  nothing  for  agri- 
cultural purposes. — (IT.  S.  Ev.,  pt.  1,  p  08.) 

Tolniie.  Abandoned  on  account  of  order  of  Olney,  In- 
dian agent,  in  1855-0.  Company  afterwards  made  no 
effort  to  re-occupy  it. — ({).  100.) 

W.  H.  Gray.  Buildings  did  not  cost  over  $250.00.— 
(U.  S.  Ev.,  pt.  1,  p.  101.)"  Value  of  buildings  at  $1,000. 
-{lb.) 

Applegate.  The  old  fort  sold  in  1860  for  $900.— (p. 
274.)  Valued  what  remained  of  old  post  at  $200. — (p. 
273.)     ;N^o  land  fit  for  cultivation. 

Applegate.  Town  property  in  Wallula  could  not  be 
sold  for  cost  of  improvements. — (p.  291.) 

Kinearson  adopts  report  made  by  Applegate,  Carson, 
and  witness  as  to  this  post. — (p.  317.) 

Carson  adopts  report  made  by  A[)plegate,  Rinearson 
and  witness. — (p.  350.) 

Xesmith.  Post  in  1843  of  adobe,  may  have  cost  $2,000 ; 
saw  no  enclosed  lands  near  it.  Country  aronnd  sandy 
<lesurt.— (U.  S.  Ev.,  2d  pt.,  p.  28.)  Does  not  think  Wal- 
lula  will  ever  be  important. — (p.  28.) 

Nelson  states,  or  McDongal  says,  Walla-AValhi  mere 
fort,  poor  soil,  cost  a  good  deal,  no  farms  tbere,  small 
garden,  no  trade  in  furs,  built  to  subdue  Indians. — (p.  99.) 

^icFeel3\  In  1853  fort  consisted  of  two  or  three,  pro- 
bably four,  snuill  buildings,  adobes.  The  country  adjoin- 
ing was  barren  and  sandy,  with  the  exception  of  narrow 
strii)s  near  the  Touchet.  Saw  no  land  there  under  culti- 
vation ;  does  not  think  cost  of  buildings  over  $5,000. — 
(p.  121.) 

Huntington.  In  1802  buildings  almost  entirely  de- 
stroyed.   No  laud  enclosed  at  post.    Company  had  a  farm 


BSEE 


9i 


,  I- 

i4 


f 


1; 

.'I 


ili 


«'   ■■    .;:!'i:: 


":  ili: 


48 

twetity  miles  back  in  Walhi-Walhi  valley,  some  20  or  80 
acres,  excellent  land,  worth  $^  or  $10  an  acre.  No  build- 
ings on  farm. — iib.)  Umatilla  has  superseded  Wallula. 
— (p.  150.)  l!^ever  heard  of  any  enclosure  around  post. 
Seen  great  numbers  of  Indians  pasturing  their  horses  in 
hills  back  of  fort.     Land  sandy  desert. — (p.  164.) 

Col.  Gibson.  Nez-Perce  was  more  a  halting  place  for 
Company's  ponies  than  anything  else.  Some  little  trad- 
ing with  Indians  with  ponies. — (//;.) 

Cain.  In  1859  buildings  dilapidated ;  have  been  rebuilt 
by  traders,  believes  at  their  own  expense. — (p.  223.) 
Buildings  vrorth  in  1859,  betbre  being  rebuilt,  ^2,500  to 
$3,000. — (p.  224.)  No  good  farming  or  grazing  lands 
under  fourteen  miles. — (ib.)  In  1859  mile  scj^uare  of  land 
had  no  particular  value  apart  from  buildings;  since  then 
it  has  become  valuable  as  a  landing  for  the  mines,  and  to 
a  limited  extent  for  country  around. — iih.)  Tiie  part  that 
lias  become  vahuible  is  where  the  buildings  are. — (p.  237.) 
About  80  acres. — [ib.)  The  rest  of  the  mile-square  has 
only  a  speculative  value. — (p.  238.) 

Shoemaker.  In  1862  Van  Syckle  called  landing  at  old 
Walla- Walla,  Wallula.— (p.  252.)  When  Van  Xvckle 
went  to  it  there  was  no  apparent  occupation  by  Company. 
— {ib.)  After  gold  excitement  over,  Umatilla  sprung  up, 
and  Wallula  declined;  the  trade  was  diverted  from  Wal- 
lula and  Van  Syckie  became  ruined. — (ib.)  Wallula  went 
down  with  Van  Syckie;  nearly  all  the  buildings  ceased  to 
be  occupied,  and  a  number  of  them  were  torn  down. — 
(p.  253.)  The  old  buildings  of  the  Company,  before  1860, 
were  in  a  dilapidated  condition ;  worth  $500  to  $1,000 
provided  any  one  wanted  them. — [ib.)  Witness  is  liousc 
builder  and  carpenter. — (lb.)  Lewiston  above  has  taken 
the  upper  trade  from  Wullula. — (p.  254.)  Land  around 
of  no  value  for  several  miles,  the  bottom  lands  subject  to 
overflow. — {ib.) 

Gov.  Gilpin.  Country  around  extremely  sandy,  of  no 
value  for  cultivation  or  pasturage. — (p.  332.)     From  five 


d(| 

in 

Gl 

iv\ 
w 

(I 
t(J 

eil 


)il!1*l| 


411 


>(l  or  30 
obuild- 
Vallula. 
nd  post. 

orses  in 

) 

>lacc  for 

;tlc  trad- 

u  rebuilt 

p.  223.) 
^2,500  to 

ng  lands 
■e  of  land 
ince  then 
es,  and  to 

part  that 
-(p.  237.) 
L^uare  has 

lina;  at  old 
m  iSvckle 
Company, 
prung  up, 
from  Wul- 
illula  went 
s  ceased  to 
n  down. — 
3tbre  18G0, 

to  $1,000 
ss  is  house 

has  taken 
,nd  around 

subject  to 

mdy,  of  no 
From  live 


to  seven  acres  cultivated  land  worth  §10  to  $12,  mx  ucro. 
—(p.  338.) 

Dowell.  In  1835,  post  would  not  liavc  sold  for  over 
.$2,000. — (p.  3(31.)  The  agent  in  charge  said  the  Company 
left  the  post  from  fear  of  Indians. — (///.)  The  reason 
things  not  moved  from  post  when  it  was  abandoned,  was 
from  want  of  transportation, — (p.  302.)  Land  around  a 
barren  sandy  plain. — {ih. ) 

Terry.  In  IS')!  buildings  not  worth  $10;  of  no  value 
now. — (p.  301.)  Original  cost  of  buildings  not  over 
§2,500.— (p.  391.) 

Gibbs.  In  1853  post  utterly  valueless,  except  as  a  sta- 
tion where  horses  kept  for  the  trains.  Not  trade  enough 
to  warrant  its  maintenance.  Fort  in  very  inditferent  re- 
pair. Some  eighteen  or  twenty  miles  up  the  Walla- Walla 
river  is  a  so-called  farm  on  which  were  two  snnill  build- 
ings. Some  twenty  acres  at  farm  cultivated  in  different 
spots.  No  vegetation  on  land  round  fort  capable  of  sus- 
taining animals. — (p.  403.) 

Nez-Perces  post  in  1854  almost  wliolly  valueless,  except 
as  a  station  where  horses  can  be  kept  for  the  trains. — 
(Gov.  Stevens'  Report,  Miscellaneous  Ev.,  p.  221.)  Eight- 
een miles  up  Walla-AValla  river  to  so-called  farm,  on 
which  are  two  small  hovels.  The  dam  formerly  here  for 
irrigation  is  broken  down.  Considers  $5,000  a  large 
estimate  for  post  and  farm. — (Jb.) 

Fort  Boise. 

Fort  and  buildings  being  of  uni)ur)it  brick,  are  melted 
down  by  rains.  It'  l)uildings  there  in  1843  existed 
in  1863,  would  not  have  sold  for  over  $1,000. — (Gov. 
Gibbs,  IT.  S.  Ev.,  pt.  1,  p.  34.)  Soil  about  post,  barren 
and  sandy,  with  no  timber  except  scrubby  cottonwood  and 
willow,  on  the  Boise,  and  very  little  of  the  land  tillable. — 
(p.  34.)  The  best  unimproved  land  at  post  worth  from  $3 
to  $5  an  acre,  and  it  would  be  some  time  before  it  would  he 
entered  at  $1.25  an  acre. — (p.  34.)     Hoofs  of  buildings 


■IV 


no 


i  }• 


!.i|fii 


,f<j(ji 


.^.j: 


r   '['if 


made  of  sjilit  lo,s;a,  covered  w\{\\  dirt. — (p.  20.)  Land 
roqiiiros  irrigation. — (i».  30.)  No  Indian  trade  tliere  now 
{186(>)  of  any  valne. — (|).  ij\K)  McCarver  saw  post  in 
1843.— (p.  31.I.) 

Aukenj.  Saw  post  in  1850.  Buildings  a  good  deal 
dilapidated. — (p.  42.)  Bnildings  worth  nothing  for  agri- 
cultural ]>urposes. — (p.  ^'^.)  Miglit,  as  a  place  of  deposit, 
be  worth  $2,000. — {ib.)  Soil  around  alkali,  brush  and  sand 
the  most  of  it. — (p.  42.)  Would  class  it  with  government 
land,  $1.25  per  acre.     Some  4  or  5  miles  oft",  land  better. 

The  Company's  agent  told  Aukenythe  Indians  around 
had  got  lazy,  and  he  thought  the}'  would  have  to  aban- 
don the  post.— (U.  S.  Ev.,  pt.  1,  p.  40.) 

Meek.  Says  "the  soil  is  very  bad  about  Boise."  Sand, 
sage,  and  greasewood  is  about  all. — (U.  S.  Ev.,  pt.  1,  p. 
(37.)  Don't  think  the  land  would  he  worth  anything  for 
agricultural  purposes. — (p.  67.)  Buildings  cost  about 
$1,000.— (p.  G7.) 

Tolmie.  Fort  Boise  abandoned  in  1850,  because  Snake 
Indians  became  hostile. — (U.  S.  Ev.,  pt.  1,  p.  !M».) 

Gray.  Buildings  cost  less  than  $250.— (U.  S.  Ev., 
pt.  1,  p.  163.)  Lands  near  not  worth  over  $1.25  an 
acre. — [ib.) 

Nesmith.  Buildings  1843,  worth  about  $1,000.  Two 
or  three  acres  enclosed. — (L'.  S.  Ev.,  pt.  2,  p.  27.) 

Nelson.  Dr.  McLoughlin  said,  no  farms  at  Boise. 
Post  established  to  keep  Indians  in  order. 

McFeely.  In  1854  the  fort  consisted  of  one  or  two 
adobe  buildings,  or  one  building  with  three  or  four  small 
apartments,  and  a  small  corral.  Thinks  the  cost  of  buil- 
dings not  over  $2,000. — (p.  122.)  The  land  around  barren 
and  sandy. — {ib.)  Saw  no  land  enclosed  or  under  culti- 
vation.— (ib.) 

Col.  Gibson.  Would  not  have  given  anything  for 
buildings. 

Col.  Keno.  In  1859,  buildings  pretty  much  in  ruins. — 
(p.  200.)     Bnildings  were  worthless. — ([>.  210.) 


i 


11 

C( 
HI 
PJ 

cli 

tif 

a 

11 

ti 


.1 ,     ;,:H; 


51 


Land 
cro  now 
post  in 

»od  deal 

for  agri- 

dcposlt, 
and  sand 

ernment 

d  better. 
IS  around 
;  to  aban- 

"     Sand, 

,  pt.  1,  P- 
rtbing  for 

ost   about 

luse  Snake 

W.) 

J.   S.  Ev., 

I-   $1.25  an 

,000.     Two 

27.) 

s   at  Boise. 

one  or  two 
,r  four  small 
uost  of  biiil- 
•ound  barren 
under  culti- 


mytbing 


for     i 


;b  in  ruins. — 

.0.) 


Colonel  Reno  saw  no  cultivated  land. — (p.  211.)  Soil  of 
alkali  nature,  sage  brush,  very  inditterent  for  cultivation. 
— (p.  211.)  As  to  pasturage,  I  do  not  think  a  herd  of  a 
hundred  animals  could  live  within  range  of  the  post,  and 
be  at  all  serviceable. — {lb.)  Found  it  useless  to  send  ani- 
mals there  for  pasturage. — [id.) 

Simpson.  In  18r>3  buildings  in  dilapidated  condition  ; 
the  land  nearly  a  desert,  with  excejjtion  of  little  strips 
alouii'  river.  Values  buildings  and  land  in  l><i')d  at 
$0,000.  In  1855  very  little  difference  in  value  ;  buildings 
may  have  depreciated  some. — (p.  202.) 

George  Gilpin.  Similar  to  Fort  Ilall  ;  buildings  some- 
what better;  of  less  value  as  trading  post.  Chief  use,  as 
a  place  of  rest  for  Conipany's  ti'ains.  Sa\v'  no  enclosed 
land.  Should  not  value  buildings  and  post  over  $2,500 
or  83,000. 

Allen.  In  1852  the  value  of  buildings  so  slight  it 
would  be  ditHcult  to  estimate  it.  Saw  no  trade  there. 
The  employee  in  charge  said  trade  did  not  pay  his  com- 
l)ensation. — (p.  306.) 

Dr.  Sucklev.  AUowini?  for  time  adobe  bricks  are  dry- 
ing,  the  mere  labor  of  building  such  fort  ought  to  be 
perioriiied  by  twenty-five  men  in  five  days. — (p.  248.) 

Fort  Boise  in  1854  merely  a  stopping  place.  Estimates 
Fort  Boise  and  Fort  llall  at  $15,000.— (Gov.  Stevens'  R., 
Miscellaneous  Ev.,  p.  223.) 

It  is  to  be  noted  that  Fort  Boise  was  abandoned  in 
185(5  by  the  Company  on  account  of  the  Intliaiis  be- 
conung  hostile,  an<l  no  effort  was  made  by  Company  after- 
wards to  re-occupy  it.  This,  it  is  submitted,  shows  the 
post  was  valueless. 

It  is  further  to  be  noted  that  McKinlay,  one  of  the 
chief  factors  of  the  Company,  could  not  define  any  par- 
ticular lines  of  the  Company's  claim  at  this  post.  In  the 
absence  of  such  evidence,  it  is  submitted  the  Company's 
limits  must  be  restricted  within  the  narrowest  range,  as 
the  Company  are  bound  to  prove  the  extent  of  tlu'ir  claim 
definitely  at  each  post. 


},4 


im 


( .' 


111!''  ;;i; 

'  :  ''  f. 


■y\ 


jifll 


m 


i;'.lt^: 


FouT  IIali,. 

1.  It  is  to  1)0  noted  tliat  no  uHort  was  nmde  by  Com- 
pany to  re-ocoupy  tliis  post  at'tor  its  abiindonnient  durini,^ 
tlio  Indian  war. 

2.  That  tlici'o  was  no  cultivated  land  there. 

o.  That  the  buildinn's  were  washed  away  by  the  river. 

Aukenv.  Saw  Fort  IFall  in  184!>.  Ado])e  Buildinii-s. 
— (U.  S.  Ev.,  pt.  1,  p.  40.)  Land  worth  government 
price. — (p.  41.) 

Meek.  Thinks  buildings  at  Fort  lEaii  cost  81,000.— 
(U.  S.  I'A'.,  i>t.  1,  p.  GO.)  Land  about  Fort  Hall  worth 
$1.25  an  aere. — \\).  67.)  Finployees  su[)portod  by  game 
killed  or  bouglit  from  Indians.  Game  wys  in  great  abun- 
dance tiicre. — (p.  70.)  Fort  Ihdl  was  put  uj)  in  two 
months  by  ten  or  twelve  Kanakas  ;  not  sure  whethei'the 
inside  was  completed  in  that  time. — (p.  SO.)  Fort  Hall 
built  by  men  who  irot  $10  a  year.  Provisions  were  cheap 
then.  The  Indians  friendly. — (p.  82.)  IJeaver  were 
scarce. — (p.  80.)  Very  little  lumber  about  Fort  Ifall. — 
(p.  05.) 

Tolmie.  Fort  Hall  abandoned  in  1850.— (p.  00.)  The 
Indian  war  of  1855  caused  its  abandonment,  as  introduc- 
tion of  ammunition  forbidden  by  Governnicnt,  I'.nd  peo- 
ple at  post  subsisted  by  hunting. — (p.  00.) 

Gray.  Buildings  cost  less  than  ,^250.- (U.  S.  Ev.,  pt. 
1,  It.  lOa.) 

C.  0.  Hewitt.  At  Fort  Hall  in  1852.  The  officer  in 
charge  said  it  would  not  pay  to  keep  up  the  post,  and 
the  Company  was  going  to  abandon  it. — (p.  882.)  In 
1862  found  no  building  of  any  kind  standing,  the  river 
had  washed  away  the  post. — {ib.) 

11.  II.  Hewitt.  In  18(!2  the  bare  remnants  of  an  old 
station.     The  post  bad  been  washed  away. 

Nesmith.  In  184o  Fort  Ilall  a  rude  structure  of  adobe, 
the  buildings  covered  with  poles  and  dirt,  very  cheaply 
built.  Tliinks,  at  the  then  juices  of  labor,  Fort  Hall 
could  hiivc  been  built  forii^l.OOO. — (p.  27.)     Saw   no  cul- 


4:]J 
pn 
art 

vH 

rui 


i.iiiiiyiiM' 


"):j 


Com- 
(luriiig 


0  nvor. 
ildiiiii;^. 
rnmoiit 

[,000.— 

1  worth 
IV  sjrame 
at  ubmi- 

in  two 
'tlicrtlie 
ort  Hall 
I  re  cheap 
er  were 
t  IlalL— 

9.)  The 
mtroduc- 
I'nd  pco- 

.  Ev.,  pt. 

ofHoer  in 
post,  and 
88-2.)  In 
the  river 

of  an   okl 

>  of  adobe, 
y  cheaply 
Fort  Hall 
w   no  ciil- 


X 

i 


tivated  lands  there;  the  a<jcent  in  charLfe  said  tiiey  raised 
nothins:;  there. — (//>.)     Bnihlings  withont  tloors. — (p.  40.) 

Nelson.  ])r.  MeLoiiii'hlin  said  Fort  Hall  hnilt  hy 
Wyi'th,  an  American,  m  1834.  to  snjtply  the  tra])pers; 
Tio  farms  there;  8  or  4  cows  sent  in  183(i  \}y  Company  t(^ 
i(ive  Indians.  Land  barren  around. — (U.  S.  Ev.,  2d  i)t., 
p.  00.) 

i\(lams.  Eort  Hall  built  of  a(!iho.  Estimates  cost  of 
construction  at  $0,000. — (p.  118.)  Saw  no  enclosed 
ground  for  cultivation  outside  of  the  fort. — {ib.) 

Sim[)son.  Saw  no  cattle  at  Fort  Hall  in  18-5").  Com- 
l)any  had  a  few  liorses  tliere. — (j>.  201.)  Land  and  build- 
ings in  1802  worth  about  $0,000.— (p.  208.) 

Gov.  Gilpin.  At  Fort  Hall  in  1844.  Post  snudi 
([Uadrangular  post,  adobe  log  cabins;  buildings  of  little 
value  as  structures;  for  mere  temporary  use.  $2,000 
would  be  a  generous  price  for  all  structures  at  Fort 
Hall. — (p.  381.)  Xo  cultivated  la. ids;  no  enclosures  but 
temporar}'  corrals  with  poles.  About  300  or  350  head  of 
stock  grazing  around.  The  amount  of  trad"  uncertain 
and  transient  on  account  of  migratory  character  of  Indi- 
ans about. — (?'/>.) 

Howell.  Country  around  in  1852  vacant.  Immedi- 
ately round  the  fort  a  sandy  plain. — (p.  300.) 

Geid.  Granirer.  In  1840  buildings  old  and  decaved. 
not  worth  more  than  quarter  what  it  was  when  new. — (p. 
379.)  Land  around  utterly  sterile,  with  exception  of 
river  bottom  and  small  stream  called  Portneuf.  A  patch 
of  acre  and  a  half  spaded  up.  Adobes  cheaper  than 
wooden  buildings. 

Okanagan. 

Auken}'.  Was  at  post  in  1859. — (U.  S.  Ev.,  pt.  1,  p. 
43.)  Buildings  going  to  rack,  general  waste  around  the 
jiremises. — (p.  44.)  Buildings  worth  $500. — [ib.)  Land 
around  sandy  and  poor. — (ib.)  Not  valuable  now  as  a 
]ilace  of  trade. — (//'.)  Buildings  pretty  much  gone  to 
ruins. — (p.  53.) 


^^:f 


p !  iimr' 


54 


1* 


1  ., 


Tolniie.  Company  lias  no  white  person  at  Okana^nn. 
There  may  he  an  Indian  chief  in  chariije. — (p.  91).) 
Okaiia<;'an  lost  its  importance  after  Cayuso  war  of  1H47-8. 
The  Comi>any  liad  to  open  a  new  ronte  tlirough  British 
Cohinihia  to  Lower  Fraser  river,  and  Okanoijan  was  su- 
l)erseded  by  new  post  at  Simalkameen,  situated  a  few 
miles  north  of  the  line. — (p.  103.) 

Kinearson.  Keirards  land  as  not  valuable  for  agricul- 
tural [)urposes. — ([>.  31G.) 

Xelson.  States  Dr.  McLoughlin  as  sayinu',  Okanogan 
a  small  post,  receptacle  for  the  boats;  soil  barren;  small 
garden.— (U.  S.  Ev.,  pt.  2d,  p.  98.) 

G.  C.  Gardner.  In  1801  buildings  in  a  dilapidated 
condition. — (p.  195.)  liemembers  no  enclosed  land  at 
fort.— (//>.) 

AV^ilkes.     Okanagan  situated  on  sandy  rock. — (p.  284.) 

AVilkes.  Woil  too  poor  for  farming.  In  1841  Com- 
pany had  some  goats  there,  and  thirty-five  cattle. — (p. 
28.5.) 

Mowry.  In  1853  buildings  had  depreciated  75  per 
cent.  Thinks  ten  men  could  have  built  the  i)ost  in  three 
months. — (p.  385.) 

Gibbs.  In  1853  Okanagan  consisted  of  three  small 
houses,  enclosed  by  stockade.  No  appearance  of  busi- 
ness there.  It  was  in  state  of  perfect  squalor.  Did  not 
pay  expenses. — (p.  407.) 

Dr.  Suckley.  Twenty-five  soldiers  could  build  Fort 
Okanogan  in  two  days. — (p.  242.) 

In  1854  no  appearances  of  trade  here.  Post  does  not 
probably  pay  expenses. — (Gov.  Stevens'  R.,  Miscellaneous 
Ev.,  p.  222.)  Estimates  value  of  Okanagan,  Kootenais, 
Flatheads,  and  right  of  pasturage  on  Clark's  Fork  at 
15,000.— (i6.,  223.) 

COLVILE. 

Aukony  was  at  Colvile  in  1859-'GU. — (U.  S.  Ev.,  pt.  1, 
p.  43.)     Does  not  thiidc  it  has  any  importance  as  a  boat 


J   '. 


^ 

i 


in 


tiel 
nit 

thii 
tivf 

Sul 
pa[ 


:>r> 


[p.    OU.) 
f  1H4T-8. 

was  su- 
5(1  a  few 


■  aji;ric 


ul- 


)kauo<?au 
211 ;  small 

ilapulated 
il  land  at 

-(p.  284.) 
1841  Coin-     i 
lattle.— (p. 

ed  75  per 
ast  in  throe 

hrec  small 
ce  of  busi- 
•.     Did  not 

build  Fort 

)st  does  not 
iscellaneous 
^  Kootenais, 
k's  Fork  at 


S.  Ev.,  pt.  1, 
ce  as  a  boat 


landin*^,  (|>.  41*,)  or  place  of  trade. — (//>.)  It  is  an  out-of- 
the-way  [dace. — {(/).}  »)40  acres  laud  round  Col  vile  worth 
^'2.'>0  to  $.')  jier  acre. — (p.  4-').) 

Ap)>legate  values  iniprovemouts  at  ^8,800. — ()».  'JTO.) 
Values  land,  exclusive  of  irnproveuients,  at  Si*,'>00. — (p. 
277.)  Attaches  no  value  to  it  as  a  town  site. — (p.  278.) 
Values  mill  at  $r)00.— (//>.)  Values  White  Mud  farm, 
30  acres,  at  ^1.25  an  acre. — (ih.)  Would  not  sell  the 
water-power  at  mill  for  less  than  $r),()()0. — (p.  21»8.)  Does 
not  consider  Kettle  Falls  valuable  as  a  water-jtower. — (p. 
802.) 

Rinearson  adopts  the  re[>ort  made  by  Api)Ieii:ate,  Car- 
son, and  himself. — (p.  317.) 

Carson  adopts  the  reports  of  Api)legate,  Kinearson,  and 
himself. — (p.  35G.) 

G.  C.  Gardner  identities  photou'raph  of  Fort  Colvile. — 
(p.  195.) 

Cain.  Buildings  in  1850  worth  from  5  to  $7,000  to 
any  one  needing  them  at  that  point. — (p.  224.)  Identi- 
ties photograph  of. — (p.  225.) 

Mowry.  Saw  post  in  1853.  Buildings  had  depreciattid 
in  value  40  per  cent. — (p.  384.) 

Gibbs.  Before  1853  goods  were  sent  througli  this  post 
to  those  north  of  the  line,  but  that  route  was  abandoned. 
Behind  the  fort,  and  elevated  above  it  about  a  hundred 
feet,  is  a  narrow  valley,  through  which  runs  Mill  or  AVhite 
Mud  creek. 

In  this  valley  the  discharged  servants  of  Company  set- 
tled to  the  number  of  15.  In  this  valley  is  a  cattle  post 
nine  miles  from  fort,  and  a  grist-mill  of  one  pair  of  stones 
three  miles  from  fort.  Oidy  small  portion  of  farm  cul- 
tivated in  1853.— (p.  405.) 

The  buildings  occu[)ied  by  North  Western  Boundary 
Survey  at  Fort  Colvile  were  greatly  superior  to  Com- 
pany's buildings  at  Colvile. — (p.  400.) 

Kettle  Falls  not  valuable  for  manufacturing  purposes. 
-(p.  417.) 


^It--I 


Suc.'kle\'.  Twonty-fivc  soldiers  couid  build  Fort  Col- 
onic [..  thirty  <ltiys,  or  less. — (p.  541,) 

Gov.  StevenSj  in  1854,  estimates  post  and  mill  at 
S25,00(  ,  —(Gov.  Stevens'  K.,  Aliscellaneons  Ev.,  p.  222.) 


■■'m 


KoOTENAIS. 

Tolmie.  Kootenais  not  now  occupied,  the  Company 
have  a  post  north  of  the  line  in  Kootenay. — (U.  S.  Ev., 
pt.  1,  p.  08.)  New  post  at  Kootenais  est.ablished  because 
a  trail  opened  through  British  territory. — (p.  105.) 

Nelson.  Slates  thatDr,  McLoughlin  said  Kootenais  a 
mere  winter  trading  post,  no  tarms,  no  cattle. — (U.  S. 
Ev.,  pt.  2,  p.  98.) 

G.  C.  Gardner.  In  1860,  ])assed  some  log  houses, 
which  the  Indians  said  was  old  Kootenais  post. — (p.  102.) 
Buildings  dilapidated. — (p.  103.) 

A.  Gardner.  Identifies  photograph  ot  mission. — (p. 
320.) 

C.  T.  Gardner.  In  1800,  there  was  a  log  house  and 
shed  in  dila[>idated  condition. — (p.  322.)  About 40  acres 
seemed  to  have  been  in  cultivation. — (p.  323.) 

Hudson.  Kootenais  consisted,  in  1850,  of  a  church,  a 
usvelling  for  man  in  charge,  and  three  or  lour  smaller 
buildings. — (p.  340.)  liecognizes  pliotograi)h  of  churcli, 
the  dwelling  was  similarly  built,  but  much  smaller.  The 
other  buildings  were  inferior,  and  quite  small. — (ih.)  Saw 
no  one  in  charge.  Saw  no  signs  of  cultivated  land,  or 
stock.— (p.  340.) 

Gibbs.  In  18()0,  there  were  only  two  small  worthless 
log  cabins.  Recognizes  photograph  of  Catholic  Mis- 
sion.— (p.  407.) 

Alden.  Land  around  generally  of  a  miserable  ((UJiiity. 
Four  or  five  log  huts.  Tiie  largest  one  a  church.  It  was 
e'upty,  except  some  religious  engravings, — (p.  552.)  lie- 
cognizes  photograph  of  Catholic  Mission,   in   evidence, 

).  558.)     Jiuildings  looked  very  much  dilapidated. — (p. 


(1 


I 


li. 
t( 


P' 


554.)     Three  axe-men  could  erect  such  a  house  as  Lenk 


57 


)r 


t  Col- 


mill   at 
p.  222.) 


lompany 

.  S.  Kv., 

because 

5.) 
otenais  a 

,— (IT.  S. 

•  houses, 
l(p.  192.) 

sion. — (p. 

lOUsc  and 
it  40  acres 

cliurcli,  a 
ur  smaller 
[)f  cliurcli, 
Her.  The 
.[ib.)  Saw 
ad  laud,  or 

I  worthless 
holi(    Mis- 

ble  quality. 

eh.     It  was 

562.)     Ke- 

II  evidence, 
idated.— (p. 
ise  as  Lenk- 


later's  in  three  days. — ([>.  554.)  Saw  no  i>-(wd  land  on 
tobacco  plains,  near  Kootenais. — (p.  550.)  Wlioie  coun- 
try graveled  terrace. — (p.  560.)  Jjenklatei''s  house  wiis 
half  the  size  of  the  church. — (p.  501.) 

Flathhad. 

Nelson.  States  Dr.  McLoughlin  said  Flatheads  used 
only  in  winter  to  trade  with  Indians. — (U.  S.  Ev.,  2d  pt., 
p.  08.) 

Adams.  In  1851,  buildings  barely  habitable.  It 
would  have  cost  ^1,20U  to  rebuild  them. — (j).  114.) 

GONCLUSI-ON  AS  TO  THE  ToSTS. 

We  are  now  able,  in  contirmation  of  the  views  pre- 
viously presented  of  the  nature  of  the  rights  of  the  Hud- 
son's Bay  Company,  of  their  value,  and  of  the  true  mea- 
sure of  compensation,  to  refer  intelligently,  and  with 
appreciation  of  tacts,  to  further  illustration  of  the  true 
nature  of  the  claim  of  the  Company  to  compensation. 

1.  The  value  of  the  possessory  rights  of  the  Company 
is  illustrated  by  the  case  of  the  Indians  of  Xorth  America. 

Chancellor  Kent,  with  his  accustomed  clearness,  thus 
states  the  nature  of  their  interest  in  the  territory  held  by 
Eu"opeans,  and  their  descendants  in  America: 

"  The  European  nations  which  respectively  estab- 
lished colonies  in  America,  assumed  the  ultimate  dominion 
t(  be  in  themselves,  and  claimed  the  exclusive  right  to 
grant  a  title  to  the  soil,  ,^uhied  onh/  to  the  Indian  riijld  of 
(H-cupanrij.  The  natives  were  admitted  to  be  the  rightful 
occupants  of  the  soil,  with  a  legal  as  well  as  just  claim 
to  retain  possession  of  it,  and  to  use  it  according  to  their 
own  discretion,  though  not  to  dispose  of  the  soil  at  their 
own  will,  except  to  the  government  claiming  the  right  of 
pre-emption. 

Kent's  Comm.,  vol.  8,  ]).  461,  sec.  oTO. 
Sec  also  Opinions  of  Attorneys  (xeneral,  vol.  8,  p. 
255,  338. 


Hi 


Tj.s 


The  Government  possesses tlieexclnsive  power  ot'grant- 
\u'j;  the  soil  to  individuals,  subject  only  to  tlie  Indian 
right  of  oceupancv. 

Johnson  v.  Mcintosh,  8  Wheat.,  548. 

Mitchell  V.  Tlie  United  States,  U  J*et.,  712. 

United  States  v.  Fernandez,  10  Pet.,  303. 

United  States  v.  Kellienx'  Heirs,  14  11, ,  180. 

Sparknian  v.  Porter,  1  Pa.,  457. 

The  Indians  liave  onlv  a  riii'ht  of  use,  wliich,  however, 
is  divested  by  purchase  or  conquest. 

Godfrey  v.  Beardsley,  2  McLean,  412. 

From  these  authorities  it  appears  that  the  Indians  have 
only  a  right  of  occupancy  in  lands,  the  fee  being  in  the 
Government. 

The  Indians  have  possessory  rights  of  the  iaigest  pos- 
sible extent,  for  their  continuance  is  during  tlie  existence 
of  the  tribal  organization,  unless  sooner  terminated  by 
treaty. 

The  right  of  occupancy  may  continue,  therefore,  during 
the  existence  of  the  tribe.  Hence,  the  Indians  hold  pos- 
sessory rights  in  land  of  extensive  duration.  T>ut,  though 
their  ]»ossessory  rio-Jits  mavthus  continue  so  long  in  point 
of  time,  there  is  no  pretence  that  they  are  owners  of  the 
fee. 

The  rights  of  the  v.  .apanyto  land,  in  this  case,  are  of 
the  same  leyal  character  as  those  of  the  Indians.  The  Com- 
pany  were  in  permitted  occujiancy,  and  were  entitled  to 
the  i-osscssory  rights  arising  therefrom  ;  they  had  no  claim 
ot  title  to  the  fee  of  the  land.  They  were,  therefore,  in  the 
legal  predicament  of  the  Indians  in  regard  to  tlieir  lands. 
Both  the  Company  and  the  Indians  were  in  the  mere 
occupation  of  land,  the  fee  of  tlie  same  being  in  the  Gov- 
ernment of  the  United  States,  the  Coni[)any,  just  as  the 
Indians,  })ossessing  only  the  possessory  riglits,  at  most, 
which  arise  from  lawful  occupancy. 

The  material  diiference  between  the  legal  status  of  the 
Company  and   the  Indians  was   in   the   duration    of  the 


as 

th( 

tiej 

unt 

latl 

ill 


j-ig 
th.f 


■)0 


grant- 
Lndian 


)WCVor, 


ns  hnvo 
in  the 

ost  pos- 
)vistoncc 
ated  by 

',  (luring 
lold  pos- 
,  though 
;in  point 
IS  of  the 

iG,  are  of 
Mie  Coni- 
itltled  to 
no  eUiin\ 
.re,  in  the 
eir  lands, 
the  mere 

thcGov- 
st  as  the 

at  most, 

tus  of  the 
:)n    of  the 


ocfupancv.  And  in  tliis  reu'urd  the  Indians  have  deci- 
dedly  the  advantage,  inasniucli  as  their  riglit  of  occu- 
pancy is  of  longer  duration  :  it  is  during  tlieir  national 
existence,  uidess  voluntarily  relinquished  by  them  to  the 
Government. 

The  duration  of  the  Company's  occupancy  was  limited 
to  the  lawful  continuance  of  their  license  of  trade.  When 
that  license  terminated  their  right  of  occupancy  ceased. 

If  etlbrt  be  made  to  claim  for  the  Com])anv  anv  other 
estate  in  land  than  the  one  we  have  assigned  to  it  as  an- 
alogous with  the  Imlian  title,  then  we  sul»mit  this  pro[>o- 
sition  :  the  Company  must  either  have  such  right  of  occu- 
pancy limited,  as  we  have  stated  it  to  be,  or  they  possess 
the  whole  estate  in  fee  sim[»le. 

That  they  have  not  the  entire  fee  simple  estate  is  too 
clear  for  argument.  Assuming,  as  a  question  conceded 
in  the  case,  that  the  Company  ha\  e  not  a  fee  simple 
estate,  then  they  can  have  only  such  interest,  that  of  the 
right  of  occupancy,  as  we  have  assigned. 

That  this  right  of  occupancy  must  be  limited  in  point 
of  duration,  bv  the  lei^al  continuance  of  the  license  ot 
trade,  is  clear,  because  unless  so  limited  there  is  no  limi- 
tation to  it,  and  it  would  be  perpetual. 

Hence,  we  think,  the  Indian  title  to  land  is  instructive 
as  illustrating  that  occupancy  of  public  land  for  the 
longest  period  consistent  with  the  idea  of  the  fee  re- 
maining in  the  state. 

And  we  fui'ther  perceive  that  the  Company  is  not  in 
as  good  a  legal  condition  by  virtue  of  their  occupancy  as 
the  Indians  are,  as  the  occu[tancy  of  each  of  these  par- 
ties confers  during  the  occupancy  similar  possessory  rights, 
and  by  consequence  f*imilar  legal  remedies  for  their  vio- 
lation, but  the  occupancy  of  the  Indians  may  be  lojiger 
in  point  of  duration,  for  the  reasons  we  have  already 
given. 

'2.  We  present  another  pertinent  exain})Ie  of  })ossessorv 
rights  in  the  case  of  [»re-emi)tor,  under  the  land  law  of 
the  I'liited  State.-. 


X 


(iO 


By  the  pro-cmption  law  of  tlio  United  States  any  per- 
son, beino;  a  citizen  of  the  United  States,  or  liaving  given 
notice  of  intention  to  become  such,  being  an  inhabitant 
upon  the  public  land,  and  having  made  a  settlement  and 
erected  a  dwelling-house  thereon,  is  entitled,  upon  giving 
notice  within  a  certain  time,  and  paying  the  government 
price,  to  receive  a  patent  for  160  acres  of  land  and  thus 
become  the  owner  in  fee  simple. 

From  the  time  of  settlement  on  the  land  to  the  end  of 
the  twelve  months,  at  which  time  the  price  of  the  land 
must  be  paid,  the  settler,  called  the  pre-eniptor,  has  all 
the  possessory  rights  and  remedies  which  arise  from  the 
lawful  occupation  of  land,  with  the  supperadded  privi- 
lege of  purchasing  the  land  in  preference  to  all  otlier 
persons. — (See  Lester's  Land  Laws,  p.  855.) 

Such  is  the  legal  status  of  a  pre-em'piioner  in  general 
under  our  law.  Such  is  the  manner  in  which  the  posses- 
sory rights  of  a  citizen  of  the  United  States  in  the  public 
land  are  respected,  where  he  occupies  such  land  without 
})revious  purchase. 

In  the  State  of  Oregon  and  Torritorv  of  "Washington, 
that  is  in  the  original  Territory  of  Oregon,  there  was 
special  legislation. 

Congress,  on  establishing  the  territorial  government 
of  Oregon,  passed  an  act  which,  ii.  effect,  gave  legality 
to  certain  inchoate  titles  acquired  by  settlers  under  the 
previous  provisional  government  of  this  Territory.  It  is 
the  donation  act,  so  called,  of  September  27th,  1850. — 
{V.  S.  Laws,  vol.  0,  p.  496.) 

In  virtue  of  this  act  a  settle)-,  subject  to  certain  vow- 
ditions  of  citizenship,  was  entitled  to  six  hundred  and 
forvv-six  acres  of  land  if  married,  or  three  hundred  ai>d 
twenty  if  unmarried,  on  proof  oi'  four  consecutive  yeai's 
<»f  continued  resideiice  and  occupation. — (See  Stark  v. 
Starrs,  6  Wallace,  40:;{.) 

This  law  does  not  either  in  terms  or  s])irit  apply  to  the 
Jiudsons  Bay  C''onii)any. 


cei 

8h[ 

of 


pa^ 

SU( 


O! 


OI 


no 


toil 


lis 


61 


Y  pcr- 

a:ivcn 

bitant 

it  and 

riving 

iimeut 

I   thus 


end  of 
e  land 

luis  all 

)m  the 

privi- 

[  other 

a^eneral 
posses- 
)  public 
A'ithout 

lington, 
ere  was 

Brnment 

lesalitv 

ider  the 

y.     It  is 

'l850.-- 

ain  y.-o\\- 
Ired  and 
Irod  ai\d 
ivo  years 
Htark  v. 

ply  to  the 


If  elaiuiing  any  rights  under  it,  the  Company  must  of 
course  bo  coniined  to  tlie  limits  of  the  statute  as  respects 
the  quantity  of  land.  It  could  make  no  title  under  it 
directly, [and  if  pretending  to  any,  that  could  be  reached 
only  by  perjury  and  fraud,  as  the  pretended  title  of  the 
Puget's  Sound  Agricultural  Company,  that  is,  by  induc- 
ing individuals  to  enter  donation  claims  in  tlieir  own 
names,  but  with  secret  engagement  for  the  benefit  of  the 
Company. 

But  this  law,  and  the  general  law,  are  pertinent  to  show 
what  is  meant  by  occupation,  as  the  source  of  "posses- 
sory rights." 

Never,  until  in  this  case,  was  it  pretended  that  cutting 
timber  on  the  public  domain  for  sale,  (that  is,  stealing  it,) 
or  sutfering  cattle  to  roam  over  thousands  of  acres  of 
unsettled  public  lands,  (that  is,  wholesale  trespass,)  gave 
the  party  title  to  such  land. 

Xor  was  it  ever  pretended,  before  now,  that  the  occu- 
pant possesses  a  fee  simple. 

The  nature  of  his  possessory  rights  is  unmistakable. 
He  occupies,  with  right  of  purchase,  on  compliance  with 
certain  conditions.  If  his  inchoate  right,  as  pre-emptor, 
shall  thus  ripen  into  an  absolute  right,  then  he  purchases 
of  the  Government,  at  the  statute  price  of  the  public 
lands.  If  his  inchoate  right  shall  not  so  ripen,  then,  and 
he  abandon  the  land,  all  his  rights,  as  against  the  United 
JStates,  are  at  an  end.  lie  niay,  indeed,  sell  his  improve- 
ments to  a  succeedinif  settler,  fallowinij!:  him  in  the  occu- 
pation,  but  he  can  claim  nothing  ot"  the  Government  for 
such  improvements. 

Wiiat,  then,  is  the  value  oi'  the  pre-emptor's  interest':' 
Obviously,  only  the  worth  of  the  improvements,  in  excess 
of  the  statute  price  of  th*  land.  I'he  settler  can  pass 
nothing  else;  he  has  nothing  else  to  sell. 

Suppose,  now,  that  the  (iovernment  needs  the  land 
ll)r  public  use.  Is  the  Government  to  pay  the  sottler/or 
((s  own  land:'     Of  course  not.     The  Government  will  pay 


62 


.it. 


for  the  improvements  only,  not  for  the  fee.  The  occu- 
pant has  no  fee.     Tlie  fee  is  still  in  the  Government. 

Let  us  apply  these  views  to  the  claim  of  the  Hudson's 
13ay  Company. 

First,  it  is  to  bo  noted  that  the  treaty,  in  precisely  the 
same  language,  guarantees  the  i)osses8ory  rights  of  "Brit- 
ish subjects"  to  land  in  the  territory,  as  it  guarantees  those 
of  the  Hudson's  Bay  Company.  Any  individual  being  a 
British  subject,  and  in  the  lawful  occupanc}'  of  land  in 
the  territory,  is  entitled,  l)y  tlie  treaty,  to  have  his  pos- 
ses^sory  rights  in  such  land  resj>ectc<l  {»rccisely  to  the  same 
extent  as  those  of  the  Hudsc^n's  Bay  Com[»any. 

tSucli  being  the  case,  suppose  an  individual  British 
subject  shoukl  claim  the  benefit  of  the  guarantee,  to 
wliat  wouhl  he  be  entitled? 

Would  he  be  entitled  to  anything  uiore  than  to  be  put 
on  an  e([ual  footing  with  American  citizens  in  the  con- 
temporaneous occupancy  of  land  in  the  territory? 

The  American  citizen,  if  in  the  occupauc}'  of  land  in 
the  territory-,  under  the  special  pre-emption  laws  would 
luive  a  lu'e-emptiou  right  to  three  hundred  and  twenty 
acres,  with  the  accompanying  possessory  riglits  until  the 
patent  issued,  and  this  although  he  nuiy  have  been  in  the 
occu{>«ncy  of  much  more  than  three  hundred  and  twenty 
acres  of  land. 

Woiuld  the  British  subject  in  the  same  category  be  en- 
titled, by  virtue  of  the  treaty,  to  have  his  possessory 
righits  respected  to  a  larger  extent  than  the  American  ? 
Certainly  not  beyond  the  extent  of  the  «|M»tation  act. 

The  ti"taty  provnles  that  his  possessory  lights  shall  be 
respected,  but  it  does  not  say  in  what  manner  or  to  what 
extent  tijey  shall  be  respected.  It  in  iiiccessary  to  con- 
clude that  the  manner  in  whi'h  titei*e  rights  are  to  be  re- 
spected is  to  be  M\  to  the  discretion  of  the  United  Htates. 
And  it  is  sutHcient  for  the  United  Htittes  to  respect  them 
in  the  sMiiue  manner  it  respects  the  possessory  rights  of 
its  own  ctiizens  under  the  csime  cinumstances. 


08 


occu- 
lt, 
dsou's 

3ly  the 
"Brit- 

iS  those 
Dcing  a 
laud  in 
lis  pos- 
le  same 

British 
itee,  to 

)  be  put 
he  con- 

V 

kind  ill 
5  would 

I  twenty 
Autil  the 
ni  in  the 

II  twenty 

i<y  be  eu- 
.)ssessovy 
iiierican  'i 
\  uct, 

Av,\\\  be 
]•  t>>  what 
y'  to  eon- 
!  to  he  re- 
ed States, 
lect  them 

rights  of 


The  treaty  would  relieve  the  British  subject  from  tlic 
necessity  of  declaring  his  intention  to  become  an  Amer- 
ican citizen  in  order  to  get  the  benefit  of  the  pre-emption 
laws,  and  there  would  bo  no  obstacle  to  his  acquiring 
title  to  the  land  occui)ied  by  liim  to  the  extent  of  tliree 
hundred  and  twenty  acres.  But  he  must  i)ay  for  the  land 
if  he  seeks  to  acquire  title  from  an  occupation  as  pre- 
emptor. 

In  reference  to  the  })osscssory  rights  of  the  Company, 
they  would  be  as  })Ossessory  rights  of  precisely  the  same 
character  as  those  of  the  individual  ])re-einptor  by  the 
general  law.  But  the  Company  would  have  no  privilege 
of  pre-empting  the  land  ;  and  in  this  respect  there  would 
be  a  marked  difference  between  the  legal  status  of  the 
C'Ompany  and  the  pre-emptiotier. 

The  possessory  rights  proper  of  the  Company,  the  only 
rights  in  reference  to  land  the  Comjtany  ]»ossessed,  would 
be  in  (quality  identical  with  those  of  the  pre-emptor. 
The  difference  would  be  in  the  duration  of  those  rights. 

In  the  case  of  the  ordinary  pre-emptor  they  continue 
twelve  months.  The  only  question  is,  how  long  they 
continue  in  the  Company? 

It  is  plain  that  they  could  continue  in  the  Company 
only  so  long  as  the  Company  should  be  in  the  lawful  and 
actual  occupancy  of  the  land  claimed.  And  they  are  in 
the  lawful  occupancy  so  long  as  the  license  of  the  Indian 
trade  continues,  and  the  occupancy  of  the  land  is  neces- 
sary to  their  carrying  on  that  trade,  and  no  longer,  as  we 
have  already  demonstrated. 

Their  possessory  rights  cease  with  their  actual  occu- 
pancy. This  is  the  settled  rule  of  law  in  the  case  of  pre- 
emptions. 

United  States  v.   Stanley,  0  McLean,  V.  S.  C.  R  , 
400. 

This  is  manifest,  because  the  Company's  possessory 
rights  arise  from  occupancy.  They  spring  from  occu- 
pancy, they  perish   with   occupancy.     Where,  therefore. 


■■  K,:f'.' 


|ii:<i  •'{> 


,ti; 


'.>'■'■- 


<;4 

the  Company  voluntarily  abandon  tlio  occupancy  of  land, 
their  possessory  rights  in  such  abandoned  land  are  at  an 
end. 

In  view  of  all  vvliich,  it  is  manifest  that,  as  against  tlic 
United  States,  tlie  Company  has  claim  to  compensation 
only  for  the  value  of  improvements.  It  can  have  no 
sliadow  (U*  pretence  of  right  to  tlie  laud  as  land  until  it 
shall  have  paid  the  statute  price  thereof  to  the  Govern- 
ment. 

And,  if  the  Government  is  to  take  the  improvements 
oft  its  hands,  and  still  retain  the  fee  according  to  the 
stipulations  of  treaty,  liow  preposterors  it  is  for  the  Com- 
pany to  pretend  that  the  Government,  which  has  never 
parted  with  the  fee,  shall  itself  pay  to  the  Company  the 
value  of  its  own  public  land. 

In  truth,  this  pretension  of  the  Company,  that  com- 
pensation to  them  for  their  "possessory  rights "  in  the 
land  of  the  United  States  shall  include  the  value  of  the  land 
as  well  as  the  improvements,  exhibits  a  sublimity  of  impu- 
dence, without  parallel  in  tlie  history  of  all  the  many  ef- 
forts of  private  claimants  to  impose  upon  and  defraud  the 
Goverimient. 


Ici 


(C.) — Eight  ov  Tjiade. 

I.  The  Company  claim  that  their  rights  of  trade  have 
been  infringed.  They  construe  their  rights  of  trade  to 
include  three  items : 

1.  Indian  trade. 

2.  General  trade,  other  than  with  the  Indians. 

3.  Right  of  cutting  and  exporting  timber. 

IE.  It  becomes  important  to  ascertain  what  rights  of 
trade  the  Company  had  in  this  territory. 

We  insist  that  tie  Company  had  no  right  to  function 
in  this  territory,  except  by  virtue  of  the  license  of  trade 
granted  to  it  in  1838.  The  original  charter  of  the  Con)- 
pany  limited  its  operations  to  the  country  around  Baffin's 


A 

on 
can 

Ik 

is  ij 
it  t 
An 


Gr, 


■  hind, 
at  an 

ist  the 
isatiou 
IV e  no 
mtil  it 
overn- 

ements 
to  the 
e  Com- 
s  never 
my  the 

it  com- 
'  in  the 
the  land 
>f  impu- 
nany  ef- 
aud  the 


ade  liave 
trade  to 


rights  of 

function 

of  trade 

the  Com- 

d  Baffin's 


Bay.  In  1<S8(S  tliu  0(>ni[>uiiy  olitaint-d  a  spi-ciiil  license 
for  exclusive  trade  witli  llic  Indians  in  tliis  and  otlior 
territory  on  the  Pacific,  not  enihraced  in  its  original 
charter. 

We  ask  i-eference  in  this  connection  to  the  original 
charter  of  the  Coni[»any,  and  to  the  license  to  trade 
granted  to  it  in  1888. 

From  this  original  charter  and  this  license  to  trade  we 
claim  that,  under  the  original  charter,  the  Company  was 
confined  in  its  o[)erations  to  the  country  aroun<l  l>affin"s 
Bay,  and  that  its  right  to  operate  in  this  territory  is  de- 
rived entirely  and  exclusivelv  from  its  license  of  trade  in 
1888. 

The  acceptance  of  this  license  of  trade  is,  we  insist,  a 
conclusivt!  estoi>[)el  on  the  Company  to  pre\ent  tham  from 
claiming  a  right  to  trade  in  this  tei-ritorv  hy  virtue  of 
their  original  cliarter,  independent  of  their  license  of 
trade. 

The  husiness  powers  or  functions  of  the  Company  in 
this  territory  must,  thereiore,he  determined  hy  the  privi- 
leges conferred  in  the  license  of  trade. 

On  reference  to  the  license  of  trade  it  is  found  to  con- 
fer upon  the  Com[)any  '^  the  exclusive  ])rivilege  of  trading 
with  the  Indians."  The  license  of  trade  has  this  extent, 
no  more. 

The  Conipau}'  have  no  other  power  of  trade  than 
their  license  of  trade  gives  them.  A  corporation  is 
limited  hy  its  charter,  or  grant,  and  cannot  go  heyond. 
A  corporation  for  the  husiness  of  insurance  cannot  carry 
on  tlie  husiness  of  hanking.  A  corporation  for  haidiing 
cannot  eno:ai2:e  in  manufacturinu*. 

The  general  doctrine  upon  this  point  is  stated  in  iVngell 
lie  Ames  on  Corporations,  p.  238,  as  follows : 

"  A  corporation  in  general  can  nudce  no  contract  whicli 
is  not  necessarv,  either  directlv  or  incidentallv,  to  enahle 
it  to  answer  that  purpose,"  (the  })urpose  of  its  charter.) 
And  further,  "a  corporation  can  make  no  contract  for- 


')'';- 


J: 


1'^ 

ri'. 


'<  '■['  ■ 

:% 

■  '■  "•'.I' 

•  i.     ■'•;.■' 

i'    ''11 


■  •uv 


1       r4?' 


bidden  by  its  cbartcr." — [Ih.)  A^j^'mw.  In  detcniiining 
wbetlior  a  c*or[iorati(»ii  can  make  a  particular  coutnict, 
*  *  "wo  arc  to  consider  wbctlicr  tlio  contract  is  en- 
tirely foreii^n  to  tliat  jiurpose,"  (the  purpose  I'orwliich  it 
is  cliartered.) 

Reference  is  furtlier  had  to  the  lollowinii;  adiudica- 
tions : 

A  ujrant  to  a  life  insuran(;e  and  trust  conipany  "of  a 
power  to  buy  and  sell  drafts  and  bills  of  exchange  "  does 
not  confer  the  power  to  issue  paper  desii^ned  to  circulate 
as  money. 

In  tJie  matter  of  the  Ohio  Life  Insurance  Company, 

9  Ohio  II.,  291. 
Ducan  v.    Maryland  Savings  Institution  10  Gill  k 

Johns.,  (Md.)  R.,  2!»l». 
New  York  Firemen's  Insurance  Co.  v.  Ely,  2  Cowen, 

(N.  Y.)  R.,  0(14. 
Lane  v.  Bennett,  5  Conn.  R.,  574. 
riiiladelphia  Loan   Conipany  v.   Towner  et  al.,  13 
Conn.  R.,  249. 
So  a  corporation  authorized  for  "  the  exclusive  privi- 
lege of  trading   with    the    Indians"  cannot   engage   in 
general  trade. 

Nor  can  they  engage  in  the  business  of  cutting  and 
exporting  timber. 

The  only  business  the  Hudson's  Bay  (.ompany  could 
lawfully  conduct  in  this  territory  was  the  Indian  trade, 
and  as  a  means  necessary  and  proper  to  carry  this  on, 
they  could  cultivate  land  and  pasture  it,  and  cut  wood 
for  the  purpose  of  keeping  up  their  posts  and  employees 
in  the  territory.  Beyond  this  any  general  trading  or 
cutting  and  exporting  of  timber  was  nltra  vires. 

It  is  submitted,  then,  that  the  only  business  the  Com- 
pany could  lawfully  engage  in  in  the  territory  was  trading 
with  the  Indians.  Engaging  in  general  trade,  cutting 
and  exporting  timber,  were  outside  of  their  license  of 
trade,  which  was,  in  effect,  the  charter  under  which  they 
were  actini>:  in  the  territorv. 


Iti 


11 


♦  iT 


BetwoLMi  u  inoiv  Indiiin  trade,  and  llit'  i^ciicral  trade 
"wliicli  the  Company  asi»ired  to  with  California,  the  yand- 
wieli  Island.s,  and  the  Ilussian  possessions  in  Anierieii 
and  tlie  loeal  vVnieriean  trade,  there  is  immense  ditl'erenee. 
Tiie  Britisli  (lovernment  niiglit  have  l)een  willinn'  to 
permit  tiie  mere  Indian  trade,  and  yet  well  hesitate  hefore 
estabiishini:;  a  new  East  India  tradinij;  company  on  the 
shores  of  the  Pacific. 

Assnmino-,  tlien,  that  the  Company,  so  far  as  its  <)jene- 
ral  business  transactions  are  concerned  in  this  territory, 
must  be  confined  to  the  specific  privilege  <i,Tanted  in 
its  license  of  trade,  tradin*::  with  the  Indians,  then  tlio 
question  arises  whether  the  Company  are  i)rotected  in  this 
riii-ht  by  the  treaty  of  1S4G,  and  if  so,  whether  the  United 
States  have  done  their  duty  in  the  premises? 

It  is  sul)mitted,  tliat  the  treaty  i)rovidinjj!:  tliat  "tlio 
possessory  rights  of  the  Company,  *  *  in  land  or 
otiier  pi'operty,"  does  not  embrace  the  Company's  right 
of  trade  with  the  Indians. 

"  Possessory  rights  "  arc  rights  growing  out  of  the  pos- 
session of  tangible  property,  real  or  personal.  Before 
•' possessor}' rights  "  can  exist  there  must  be  possession 
of  proj)ert3-.  There  can  be  no  possession  except  of  that 
which  has  physical  existence.  There  can  be  no  "posses- 
sory rights  "  except  of  property  which  has  physical  ex- 
istence, as  hind,  or  a  house,  or  a  table,  or  something 
wliicli  has  material  substance.  Trade  is  not  a  thing  of 
])hysical  existence.  It  is  impalpable,  immaterial,  ideal. 
It  is,  therefore,  not  capable  of  actual  possession  in  the 
sense  which  gives  rise  to  "  possessor}- rights."  One  may 
have  possession  of  the  house  in  which  trade  is  carried  on, 
and  possessory  rights  will  arise  as  to  the  house,  from  such 
possession,  but  one  cannot  have  possession  of  the  trade 
carried  on  in  the  house,  and  "  possessory  rights  "  cannot 
arise  as  to  sucli  trade.  We  insist,  then,  that  the  guaranty 
of  the  treaty  in  regard  to  "possessory  rights"  does  not 
apply  to  the  trade  of  the  Company.     This  guaranty  ap- 


'1 


>i-  ■ 


^_ 


-r^:z 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


1.0  If  1^  ^ 

1.1  1."^!^ 


L25   ||||.4       1.6 

* *" 

► 

Photograph 
Science£> 
Corporation 


33  WIST  MAIN  STRUT 

WnSTM.N.Y.  MSSO 

(716)  S72-4503 


I      J    ■    '   .■  M 


1    t 


68 

plies  only  to  the  visible  property  in  the  occupancy  of  tlie 
Company.  So  far  as  their  trade  was  concerned,  it  was 
left  to  the  general  protection  of  the  Constitution  and  laws 
of  the  United  States. 

But  whether  we  are  right  or  wrong  in  our  opinion  that 
the  guaranty  of  the  treaty  in  reference  to  the  "possessory 
rights  of  the  Company"  does  not  embrace  their  business 
of  trading  with  the  Indians,  yet  we  insist  that  the  United 
States  have  respected  whatever  right  of  trade  the  Com- 
pany had  with  the  Indians  in  as  large  a  measure  as  was 
obligatory  on  the  United  States. 

We  insist  that  after  the  treaty  of  1846  the  Company's 
right  to  trade  with  the  Indians  was  not  to  be  ex  r:"sed 
as  an  exclusive  trade  with  the  Indians,  as  provided  in 
\,  I  their  license  of  trade  from  the  British  Crown,  but  w'as 
I  to  be  exercised  subject  to  the  laws  of  the  United  States. 
.'  The  Company,  at  the  outside,  could  only  claim  to  carry 
on  this  trade  on  an  equal  footing  with  citizens  of  the 
United  States.  The  United  States  had  a  system  of  laws 
in  operation,  in  1840,  regulating  intercourse  with  the 
Indians.  The  Company's  right  to  trade  with  the  Indians 
was  to  be  exercised  subject  to  these  general  laws,  and 
such  other  general  laws  as  should  be  made  by  the  United 
States,  not  unjustly  discriminating  against  the  Company. 
Tested  by  these  principles,  we  submit  that  the  right  of 
the  Company  to  trade  with  the  Indians  was  fully  re- 
spected by  the  United  States. 

The  Company  inake  vague  comi»laints  on  this  subject. 

1.  They  say  Gov.  Stevens,  and  Dart,  the  Sujterinten- 
dcnt  of  Indian  Afiairs,  forbade  the  Compau}-  to  trade 
with  the  Indians.  But  chief  trader,  McTavish,  admits 
the  Company  paid  no  attention  to  these  orders. 

So,  therefore,  the  attempted  prohibition  amounted  to 
nothing. 

But  we  submit  these  orders  prohibiting  Indian  trade, 
attributed  to  Gov.  Stevens,  were  either  lawful  orders, 
which    it    was   c;tim[H'(c'nl   to   him    to  issue,  as  being  in 

( 


69 


Hibjoct. 
riiiton- 
I  trade 
admits 


consonance  with  the  general  laws  of  the  United  States 
in  regulating  the  Indian  trade,  or  they  were  unlawful 
orders,  and  therefore  of  no  legal  effect,  and  the  United 
States  are  not  responsible  for  them.  ^ 

2.  They  complain  of  their  trade  with  the  Indians  being 
injured  by  the  settlement  of  the  country,  and  the  cus- 
tomary Indian  wars.  But  in  both  these  instances,  we 
submit,  the  legal  maxim  of  damnum  absque  ivjuria  will 
apply. 

The  United  States  are  not  in  any  way  responsible 
for  the  diminution  of  the  trade  with  the  Indians  from 
these  causes.  The  settlement  of  the  country'  was  a  nat- 
ural and  desirable  result  in  the  interests  of  civilization. 
And  it  wouhl  be  more  than  the  Company  had  right  to 
expect  that  this  territory  should  continue  indefinitely  the 
hunting  ground  of  the  Indians,  when  it  was  needed  for 
the  use  of  civilized  man. 

As  regards  the  Indian  wars,  they  were  unavoidable; 
they  were  brought  about  without  any  default  on  the  part 
of  the  United  States.  Those  wars  caused  a  very  large 
expenditure  of  money  to  the  United  States,  and  but  for 
the  execution  of  the  power  of  the  United  States  the  "pos- 
sessory rights"  of  the  Companj'  would  have  been  of 
scarcely  appreciable  value,  and  their  buildings  at  Van- 
couver and  other  points,  upon  which  they  place  such 
exhorbitant  value,  would  have  been  consumed  by  the 
Indians. 

8.  They  complain  of  the  Indians  in  certain  localities 
being  placed  upon  reservations,  whereby  their  trade  in 
furs  was  diminished.  But  this  measure  of  policy,  it  is 
submitted,  was  one  entirel}'  within  the  competency  of 
the  United  States  as  sovereign  in  the  territory,  and  Justi- 
fiable as  a  proper  exercise  of  governmental  discretion. 

It  can  scarcely  be  maintained  that  the  United  States, 
by  agreeing  to  respect  the  "possessory  rights"  of  the 
Company,  intended  to  abdicate  the  exercise  of  any  of 
their  sovereign  rights  in  relation  to  the  Indian  tribes 
within  their  Juric^dietioii. 


'M 


^OBBHMHtll 


m 


i''j«.i  " 


■M^- 


In  every  aspect,  theu,  in  which  the  subject  can  be  con- 
sidered, it  is  submitted,  that  the  Company  have  no 
ground  of  complaint  against  the  United  States  growing 
out  of  the  subject  of  the  trade  with  the  Indians. 

On  the  subject  of  the  general  trade  of  thf  Company 
other  than  the  Indian  trade,  it  may  not  be  inappropriate 
to  remark  that  there  can  be  no  pretence  that  the  United 
States,  in  any  degree  whatever,  interfered  with  or  placed 
impediments  in  the  way  of  such  general  trade. 

On  the  contrary,  the  Company  were  left  the  largest 
liberty  in  th's  respect,  and  were  free  to  exercise  every 
function  of  trade  as  untrammeled  as  any  American  cit- 
izen or  Araeri(!an  corporation  in  the  territory.  On  this 
point  there  can  be  no  just  complaint  against  the  United 
States. 

Indeed,  it  may  more  properly  be  said  that  the  United 
States,  in  permitting  the  Company  to  transform  them- 
selves from  an  association  of  fur  traders  to  a  vast  mer- 
cantile association,  carried  their  forbearance  to  an  im- 
proper limit,  as  necessarily  working  injustice  to  their 
own  merchants. 


i'.=; 


L-rii' 


(D.) — Navigation  or  the  Columbia. 

As  regards  the  navigation  of  the  river  Columbia,  and 
any  claim  the  Company  may  have  thereto,  it  is  submit- 
ted— 

1.  That  this  matter  is  not  within  the  jurisdiction  of  the 
Honorable  Commissioners  in  this  case. 

The  treaty  of  Jul}^  1st,  1863,  authorizing  the  Honora- 
ble Commission  in  this  case,  defines  explicitly  the  juris- 
diction of  the  Commission  in  the  following  terms  : 

"  It  is  hereby  agreed  that  the  United  States  of  America 
audherBritannic  Majesty  shall  *  *  *  appoint  each  a 
commissioner  for  the  purpose  of  examining  and  deciding 
upon  all  claims  arising  out  of  the  provisions  of  the  above 
quoted  (the  3d  and  4th)  articles  of  the  treaty  of  June 
lOth,  1846." 


ot 


it. 


ot 
qi 
T 


be  con- 
lave  no 
rrowiiig 

ompauy 

ropritite 

Uiiitcd 

r  placed 

3  largest 
5e  every 
lean  cit- 
On  this 
3  United 

)  United 
m  tliem- 
ast  mer- 
)  an  im- 
to  their 


Libia,  and 
9  submit- 

lon  of  the 

)  Houora- 
the  juris- 
ms  : 

[  America 
lint  each  a 
1  deciding 
the  above 
y  of  June 


71 

Tlie  said  3d  and  4th  articles  of  the  treaty  of  June  15tli, 
184G,  have  no  reference  to  tlie  navigation  of  the  river 
('olunibia.  That  subject  is  provided  for  in  the  2d  article 
of  the  treaty. 

The  jurisdiction  of  the  Commission  in  this  case  is, 
therefore,  restricted  to  the  matters  arising  out  of  the  3d 
and  4th  articles  of  the  treat}',  and  does  not  embrace  the 
navigation  of  the  Columbia. 

It  we  are  correct  in  this  view,  the  question  of  the  navi- 
gation of  the  Columbia  river  is  effectually  disposed  of,  so 
far  as  the  present  Commission  is  concerned. 

An  attempt  is  nuide  in  the  Company's  argument  to 
claim  the  navigation  of  the  Columbia  as  a  "  possessory 
right,"  embraced  under  the  general  provisions  in  refer- 
ence to  "possessory  rights  "  in  the  3d  and  4th  articles  of 
the  treaty  of  1846  ;  but  it  is  submitted,  that  those  articles 
have  no  reference  to  the  right  of  navis-ation  of  the  Co- 
lumbia. 

This,  we  consider,  is  manifest. 

1.  From  the  very  terms  of  the  31  article,  which  pro- 
vides that  "  the  possessory  rights  of  the  Hudson's  Bay 
Company,  *  *  who  may  be  already  in  the  occui)ation 
of  land  or  other  property  lawfully  acquired  within  said 
territory,  shall  be  respected." 

The  term  "  possessory  rights,"  as  we  comprehend  it, 
necessarily  imports  in  this  connection  rights  of  posses- 
sion growing  out  of  the  occupancy  of  land  or  other  pro- 
perty. The  right  of  navigation  is  not,  as  we  understand 
it,  a  possessory  right  in  this  sense. 

In  order  to  understand  what  the  "possessory  rights  " 
of  the  Company  might  entitle  them  to  in  reference  to  the 
right  of  navigation,  we  will,  to  put  the  case  in  the  strong- 
est light  for  the  Company,  suppose  that  they  were  the 
owners  in  fee  simple  of  the  land  at  Vancouver,  and  such 
other. points  as  they  claimed  along  the  river,  and  then  in- 
quire what  their  rights  in  reference  to  the  river  would  be. 
They  would  have  such  riparian  rights  therein,  and  the  land 


f|!. 


72 


■M'V} 


to  that  extent  under  the  water;  and  tlie  water  Howing  over 
would  heloui^  to  the  riparian  proprietor,  subject  to  the 
public  easement  of  a  right  of  navigation. 
Angell  on  Water  Courses,  p.  597. 

"Where  the  water  course  is  not  navigable,  the  riparian 
proprietor  is  absolute  owner  of  the  land  and  water,  and 
may  as  proprietor  have  exclusive  use  of  it  in  every  form 
in  which  it  is  capable  of  being  used,  subject  to  one  limi- 
tation, that  he  does  not  prejudice  the  proprietors  Jibove 
or  below  him. 

From  this  brief  summary  of  the  law,  it  is  evident  that 
the  Company's  "  possessory  rights  "  to  land  on  the  Co- 
lumbia give  them  no  right  to  the  navigation  of  the  Co- 
lumbia distinct  from  the  common  right  of  every  citizen 
to  navigate  this  common  highwav. 

The  eflbrt  to  claim  the  right  of  navigation  of  the  Co- 
lumbia, as  a  "possessory  right,"  has,  it  is  submitted, no 
basis  whatever  to  rest  upon. 

What  makes  this  view  of  the  subject  conclusive,  is  the 
fact  that  this  right  of  navigation  is  provided  for  specially 
in  a  separate  and  distinct  article,  the  2d  article  of  the 
treaty. 

The  extent  of  riparian  rights  depend  on  the  character 
of  the  river. 

If  the  river  is  navigable,  it  is  not  subject  to  private 
ownership.     The  proprietor  of  the  land  on  the  river  holds 
only  to  the  bank.     The  water  of  the  river,  and  the  ground 
covered  by  water,  are  public  domain. 
Angell  on  Water  Courses,  p.  608. 

In  reference  to  a  river  of  this  character,  the  riparian 
proprietor  has  no  more  right  or  i)rivilege  than  any  other 
person.  He  has  no  property  or  possessor}'  right  whatever 
by  reason  of  his  ownership  of  the  bank.  Whatever  privi- 
lege he  has  in  regard  to  the  river,  he  owes  it,  not  to  his 
being  a  riparian  proprietor,  but  a  citizen.  If,  then,  the  Co- 
lumbia river  at  Vancouver  is  aflected  by  the  tide,  the 
Company,  if  owners  in  fee,  would  have  no  property  right 


78 


't : 


g  over 
to  tlie 


pariau 
21',  and 
V  form 
e  limi- 
abovo 

lit  that 
he  Co- 
be  Co- 
citizeii 

tbe  Co- 
tted,  no 

e,  is  tbe 

pecially 

of  the 

laractor 

private 
3r  holds 
sround 


riparian 
y  other 
hatever 
er  privi- 
t  to  his 
the  Co- 
ble, the 
ty  right 


or  riglft  of  any  kind  in  tlio  river  doducible  from  proju-io- 
torsliip  of  the  ])nnk.  Thoy  would  stand  in  regard  to 
water  rights  or  privik'ges  precisely  on  the  same  footing 
as  other  inhabitants  of  the  country. 

If  tlie  "  possessory  riglits  "  of  the  Company  had  l)oen 
supposed  to  cnd)race  tlie  right  of  navigation  of  the  Colum- 
bia, there  would  have  been  no  use  for  the  2d  article.  The 
insertion  of  a  sjjocial  article  in  reference  to  the  naviga- 
tion of  the  river,  shows  that  the  parties,  wko  framed  the 
treaty  su}>posed  this  matter  was  not  covered  by  the  arti- 
cle in  regard  to  tbe  [)ossessory  rights  of  the  Company. 

The  Company  have  never  liad  any  particular  right  in 
the  rivers  of  the  territory,  other  than  such  as  they  had  in 
the  air  and  the  light.  They  never  posscisnl  navigable 
waters  in  the  same  sense  that  thay  possessed  land. 

Further,  to  show  that  this  right  of  navigation  is  a 
matter  not  end)raced  in  the  term  "  possessory  rights"  as 
used  in  the  treaty,  it  is  proper  to  understand,  with  some 
jtrecision,  what  is  meant  by  article  2d,  providing  for  the 
navigation  of  the  Columbia. 

It  does  not  mean  merely  the  privilege  of  having  the 
personnel  and  the  goods  of  the  Company  transported  on 
the  same  footing  as  citij^ens  of  the  Uidted  States.  That 
privilege,  if  not  secured  by  prior  existing  treaties,  would, 
it  is  suhmitted,  have  been  agreed  on  the  principle  of  the 
comity  of  nations,  and  certainly  by  the  practice  of  the 
United  States  in  like  cases. 

But  the  privilege  of  navigation  secured  by  the  first 
clause  of  the  article  to  "the  Hudson's  Ihiy  Company,  and 
all  British  subjects  trading  with  the  same,"  means  some- 
thing more.  It  means,  as  we  conceive,  that  the  Compa- 
ny, and  all  British  subjects  trading  with  the  same,  may 
navigate  the  Columbia  in  British  vessels,  officered  ]^y 
British  officers,  manned  by  British  crews,  and  sailing 
under  the  British  flag. 

Now  it  is  ridiculous  to  claim  that  such  a  great  ridit  as 
this  can  be  claimed  as  a  "possessory  right"  in  perpetuity, 
because  of  the  occu[)aucy  of  laud  in  the  territory. 
10 


^1: 


74 


"We  assume,  tlien,  as  a  matter  too  clear  for  denial,  that 
tlie  right  of  navigation  of  the  Columbia  is  not  one  of 
"the  possessory  riglits  "  of  the  Compaiiy  secnrod  by  the 
od  article,  and  is  a  matter  provided  for  by  the  2d  article, 
and  no  other. 

In  regard  to  this  right  of  navigation,  embraced,  as  we 
think,  exclusively  in  the  3d  article,  we  have  but  little 
more  to  say. 

1.  We  admit  this  right  precisely  as  laid  down  in  the 
2d  article,  and  we  have  no  disposition  to  cii  cum  scribe  it 
in  anj'  degree.  "We  do  not  regard  its  rightful  exercise  by 
the  Company  as  of  any  detriment  whatever  to  the  United 
States,  and  we  hope  the  Company  will  indulge  themselves 
in  the  largest  possible  exercise  of  this  great  privilege. 

2.  We  cannot  refrain  from  expressing  our  gratification 
at  the  great  value  which  the  Company  find  this  right  of 
navigation  to  be  to  them,  estimating  it,  as  they  do,  at  the 
sum  of  $1,400,000,  with  the  assurance  that  "the  actual 
value  is  much  more  at  the  present  time,  and  its  progres- 
sive increase  hereafter  cannot  be  easily  estimated."  We 
must  be  permitted,  however,  to  express  both  regret  and 
surprise  that  a  right  so  immensely  valuable  should,  so  far 
as  wo  are  informed,  be  in  a  condition  of  practical  non- 
user  at  the  present  time.  It  would  seem  eminently  ex- 
pedient that  the  Company  should  make  the  largest  pos- 
sible use  of  a  right  which  they  appreciate  so  very  higlily. 

3.  AVe  would  further  remark  in  this  connection,  that, 
if  the  United  States  should  ever  desire  to  put  an  end  to 
this  privilege  of  navigation,  it  would  be  properly  a  sub- 
ject of  negotiation  between  the  two  sovereign  powers, 
who  are  parties  to  the  treaty,  inasmuch  as  it  is  not  merely 
the  Hudson's  Bay  Company  who  are  to  have  this  privi- 
lege of  navigation,  but  "all  British  subjects  trading  with 
the  same."  And  as  the  Company  could  only  relinquish 
this  rii>;ht  of  navigation  for  themselves,  and  not  for  "  all 
British  subjects,"  it  would  be  impossible  to  make  a  satis- 
factory negotiation  with  the  Company  alone. 


that, 
ud  to 
sub- 
)wcr3, 
iicvcly 
privi- 
jwith 
qiiisli 
"  all 
1,  satis- 


76 

The  Portagks. 

There  is  nothing  in  the  pretensions  of  the  Company  more 
preposterous,  extraordinary  as  most  of  them  are,  than  the 
claim  of  damages  from  the  United  States  on  the  ground  of  the 
alleged  obstructions  to  the  navigation  of  the  Columbia,  caused 
by  local  improvements  at  the  portages  on  that  river. 

Theae  alleged  obstructions  consist  in  well-appointed  rail- 
roads in  full  operation,  open  to  the  use  of  the  Company,  as  to 
all  others  who  choose  to  avail  themselves  of  such  facilities. 

The  railroads  at  these  points,  running  in  connection  with 
steamers  on  the  river  above  and  below  the  portages,  render  the 
transportation  of  freight  and  passengers  far  more  expeditious 
and  cheaper  than  under  the  old  system  of  bateaus,  with  carriage 
across  the  portages,  which  the  Company  had  been  accustomed 
to  in  past  times.  That  transportation  on  the  Columbia  is  im- 
proved by  being  done  by  steamboats  and  railroads  is  a  propo- 
sition so  clear,  as  to  be  incapable  of  argument. 

We  had  supposed,  if  any  thing  distinguishes  the  age  in  which 
we  live  from  the  centuries  preceding,  it  is  its  wonderful  ma- 
terial progress ;  and  one  of  the  greatest  glories  of  this  progress, 
the  application  of  steam  to  land  and  water-carriage.  But 
this  great  achievement,  which,  if  it  has  not  abolished  distance, 
has  in  a  large  degree  overcome  it,  does  not  seem  to  meet  the 
approval  of  the  Company.  They  sigh  for  the  old-fashioned 
mode  of  stemming  the  current  by  human  force,  and  carrying 
the  boats  and  tlicir  freight  on  the  heads  of  Indians  around 
the  rapids  of  the  river.  Beinj?;  so  attached  to  this  old  system, 
we  are  surprised  that  the  Company  does  not  still  resort  to  it. 
The  United  States  have  no  objection  whatever  to  their  doing 
so.  And,  according  to  the  evidence,  there  is  no  obstacle  in  the 
way  of  their  so  doing. 

Cain,  witness,  says: 

*'  The  portages  on  the  Washington  siJe  of  the  Columbia 
river  have  never  been  obstructed.  I  am  not  familiar  with  the 
Oregon  side,  on  the  Lower  Columbia;  but  the  portages  of  the 
Upper  Columbia,  on  both  sitlcs,  both  Oregon  and  Washinf^- 
ton,  have  never  been  obstructed."  (Evidence  for  U.  S.,  Pt. 
2,  p.  240,  answer  10.) 


t.J- 


TG 


^('i;l. 


"There  is  a  wao;on  road  on  each  side  of  the  river  at  the 
Cascades.  The  one  on  the  Washington  side  has  always  heen 
a  public  highway.  There  is  also  a  wagon  road  at  the  Dalles 
portage,  which  is  a  public  highway."     [lb.  p.  248,  answer  2.) 

Ho  further  says,  the  means  of  transportation  across  these 
portages,  for  wagons  or  pack-animals,  or  for  the  backs  of  men, 
are  better  than  they  were  prior  to  the  construction  of  the  rail- 
roads,   [lb.,  p.  248,  answer  3.) 

Ainsworth,  witness,  says  : 

"  There  is  a  public  trail  and  highway,  that  anyone  can 
travel,  both  at  the  Cascades  and  Dalles.  (U.  S.  Ev.,  Vt.  1,  p. 
6,  ans.  13.) 

Even  Mr.  Mactavish,  who,  to  say  the  least,  is  disposed  to 
look  at  matters  in  a  sufficiently  favorable,  rose-colored,  or, 
rather  gorgeously-purple,  light  for  the  Company,  is  driven 
to  abandon  tbo  portage  complaint.     He  tcstlHes  as  follows  : 

Int.  885.  "  Had  the  Company  ever  been  deprived  of,  or 
abridged  in,  the  use  of  the  portages  of  tlic  Columbia  river? 

"Ans.  Not  that  I  remember  of."  (U.  S.  Mis.  Ev.,  p.  173, 
ans.  885.) 

So  that  the  claim  is  in  fact  given  up. 

The  course  of  examination  of  witnesses  on  the  part  of  the 
Company's  counsel  might  induce  one  to  suspect  that  they 
meant  to  claim  the  portages  as  their  property.  Such  claim 
would  be  quite  in  keeping  with  other  claims  of  theirs.  They 
set  up  title  to  vast  regions  of  land,  wheresoever  they  had  cut 
trees  on  the  ground,  or  allowed  cattle  to  wander  wild  in  limit- 
less waste.  They  claim  exclusive  rights  of  trade.  The  Co- 
lumbia and  all  its  affluents  are  theirs,  according  to  their  own 
pretensions.  Why  should  they  not  claim  every  highway  in 
the  country,  actual  or  possible,  and  every  track  ever  traversed 
by  their  servants  and  horses,  or  their  tributary  Indians?  To 
do  so,  would  be  entirely  in  the  spirit  of  their  grasping,  rapa- 
cious, exorbitant,  and  presumptuous  character  and  conduct,  as 
exhibited  in  their  general  claims  against  the  United  States. 

The  Company  seems  to  proceed  on  the  hypothesis,  that  what- 
ever, on  the  continent  of  America,  it,  or  any  of  its  factors, 
agents,  clerks,  or  servants,  or  its  horses,  cattle,  sheep,  or 
dogs,  ever  used  or  abused,  becomes  its  property  thenceforth; 


77 


To 


}cp, 


or 


and  after  advancing  such  claims,  it  might  well  now  file  an 
amcndmont,  claiming  a  sccoixl  half  million  extra  for  the  at- 
mospheric air,  and  a  third  half  Hullion  extra  for  the  sun  light, 
of  Oregon  and  Washington.  Its  uniraaginablo  ravenousness 
passes  the  limits  of  indignation,  and  reaches  the  region  of  ridi- 
cule and  contempt. 

(E.) — ]\IlS(KI,LAXEOUK   PoiXTS. 

/. — BemarlcH  on  Certain  Witnesses. 

The  cour,-;e  of  the  counsel  of  the  Hudson's  Bay  Coin])nny  jus- 
tifies further  coninient  on  a  jtoint,  heretofore  touched,  indeed, 
namely,  the  character  of  the  witnesses  produced  in  hehalf  of  the 
Coni])any. 

Those  who  have  been  in  the  ( 'onipnny's  service,  though  their 
connection  with  it  is  at  an  end,  may  well  be  sup[)oscd  to  syni- 
athizc  very  deej)ly  with  it,  and  to  feel  nud  testify,  therefore, 
under  a  certain  prejudice. 

Those,  who  are  still  in  the  service  of  the  Com])any,  have,  gen- 
erally si)eaking,  a  direct  pecuniary  interest  in  the  result.  They 
testify,  theref'oj'e,  to  put  nu)ney  into  their  own  [)0ckcts.  The 
evidence  of  these  witnesses  should  be  closely  scrutini/e<l,  to 
say  the  least,  and  due  allowance  made  for  the  bias  on  thoii-  part. 

We  think  it  proper  to  cite  the  names  of  these  witnesses. 

1. — A\'itnesscs  formerly  in  service  of  Company. 

Thomas  Lowe  was  a  clerk  in  Company's  service  from  18-11  to 

1850.  Co.'s  Ev..  ]).  7. 

Sir  James  Douglas  was  in  the  service  of  the  Com])any  from 
1821  to  1859.  During  the  latter  part  of  his  service  he  was 
chief  factor.     lb.,  p.  49. 

H.  F.  Crate  was  in  service  of  Com[)any,  Avitli  some  intermis- 
sion, from  1832  to  18G0.     lb.,  p.  104. 

Thomas  Flctt  generally  in  service  of  Company  from  1833  to 

1851.  lb.,  p.  1G7. 

Xeil  McArthur  was  in  service  of  Company  ten  years.  lb., 
p.  Gl. 

N.  McKinlay  was  a  chief  trader.     lb.,  72. 


78 


2. — Witnesses,  in  service  of  Company  when  cxauilned,  or 
pecuniarily  interested. 


Alexander  C.    Vnderson, 

Was  in  (Jouipany',  8ervi(!C  from  18.'U  to  1851.  From  18  46 
to  18o  I,  was  a  chief  trader.  Since  1854  has  not  been  in  the 
employment  of  the  Company,  but  retains  "  a  retrospective  pecu- 
niary interest."     Co.'s  Ev.,  p.  33. 

This  witness  attests  that  the  Coin])any's  claim  at  Colvile,  "  in- 
cludinjr  White  Mud  pasturage  and  all,  is  from  five  to  six 
miles  square,  makiuj^  sixteen  to  twenty  thousand  acres,  more  or 
less."     lb.,  p.  30. 

Values  the  cuHivablo  land  in  the  nei<^hborhood  of  the  fort 
at  about  fi^25  per  acre ;  estimates  the  cultivable  land  about  the 
fort  at  fifteen  hundred  acres,  and  back  of  the  fort,  in  the  vicinity 
of  White  Mud  at  at  least  three  tiiousand  acres  more.  lb.,  3G. 
Values  remahider  of  this  land  claim  at  $1  25  per  acre.  lb., 
p.  37. 

Describes  Comj)any's  land  at  Okanagan  :  estimates  the  horse 
range  at  Okanagan  at  fmn  twenty-five  lo  thirty  miles,  "in 
which  the  dilferent  cnclosv.res  were  contained."  Says  certain 
portions  of  it  were  very  fine  pasture,  lb.,  p.  37.  Values 
land  at  Okanagan  at  $50,000.  Values  improvements  and 
land  at  Okanagan  at  X30,000.     lb.,  p.  38. 

Values  the  po.st  at  Colvile,  including  the  White  Mud  and 
the  outposts  of  the  Kootanais  and  Flatheads,  at  jC100,000,  lb., 
p.  39. 

(States  extent  of  the  pasture  land  at  Vancouver.     lb.,  p.  39. 

Witness'  interest  is  one  eighty-fifth  in  the^fur-trade  branch, 
lb.,  p.  39. 

Values  Vancouver  in  1852-'3  at  £200,000.     lb.,  p.  48. 

William  Charles, 

Is  a  chief  trader.     lb.,  p.  171. 
Asserts  abandonment  of  W^alla- Walla  and  property  there  by 
order  of  the  United  States  Indian  agent.     lb.,  p.  173. 


79 


in- 


liorse 


H.  A.  Tuzo, 

Is  !i  cliiof  trndor.  Th.,  p.  17G. 
.I)o.«oril)(>s  Coiupany's  claim  jit  Vancouver.  Ih.,  p.  17(5. 
A'aliic.s  tli(!  hiiildiiin;  at  N'aiKiouvor.  Ih.,  j).  177-S.  Values 
land  at  Vaneouvci-.  I  h.,  j).  171).  Tlunks  Company  mij,dit  have 
realizod  8l,()()(),()0()  by  sale  of  town  site  at  Vanccmvcr.  lb., 
182.  Thiidvs  Company  lost  S40,0()<)  or  .So(),()0()  per  annum  of 
profit  on  sale  of  agricultural  produce  from  two  tliousand  acres 
of  land  at  Vancouver,     lb.,  p.  182. 

Dugald  ]\[aetavish, 

Is  chief  factor.      lb.,  p.  197. 

Ilis  interest  is  two  eighty-fifths  of  forty  one  hundred  parts  of 
the  profits  of  the  fur  trade,    lb.,  p.  ";:.'i.    "  ,\Iy  interest  extends 
to  the  whole  amount  of  the  claim  of  the  Hudson's  IVxy  Com- 
pany."    lb.,  p.  222. 

Mr.  Maetavish  is,  perhaps,  the  most  important  of  all  the 
Company's  witnesses.  His  testimony  is  very  extravagant  for 
the  Company,  especially  in  reference  to  the  extent  and  value  of 
the  claim  at  \"ancouver. 

We  have  devoted  already  some  space  to  Mr.  :Mactavish, 
but  shall  i)resently  refer  to  him  iji  particular  relations. 


•I'; 


Angus  McDouc'dd, 

Is  chief  trader.     Company's  Ev.,  p.  150. 

Describes  Fort  Hall. 

Pasturage  at  along  left  side  of  Snake  river  for  ciglitecn  to 
twenty  miles,  and  extending  southward  about  eleven  miles, 
lb.,  152. 

Says  it  would  cost  from  seventy  to  one  hundred  and  seventy 
tliousand  dollars  to  build  Fort  Hall.  lb.,  p.  153.  Would  give 
^1,000,000  for  the  claim  at  Fort  Hall.  lb.  The  enclosed 
land  at  Fort  Hall  is  worth  820  to  830  an  acre.  lb.  These 
lands  increased  in  value  every  year  since  184G.     lb. 

Hcscribes  post  at  Boise,  (lb.,)  and  ce,nsiders  it  equally  valua- 
ble as  Fort  Hall.  lb.  The  enclosed  land  at  Boise  worth,  when 
-witness  was  there,  $50  an  acre ;  now  it  is  worth  much  more. 


80 


'I 


'■1:.'         ,J.'':I, 


The  uiioiH'.losccl  land  worth  from  Si  25  to  $1  50  an  acre,  and 
have  iiicroasod  in  vahie  shicc  184(1.     Ih.,  154. 

A'ahics  land  at  Walla- Walla.     lb.,  ]).  155. 

X'alnos  the  arable  land  at  Colvilc  at  i^lO  an  acre,  and  tliat  at 
AVhite  ;Mnd  at  the  same.  lb.,  IGO.  Valnes  the  pasture  land, 
where  hay  is  cut,  at  §5  an  acre,  the  balance  at  $2  per  acre.  lb., 
8160.  Values  the  mill  at  Col  vile  at  $20,000.  lb.  Values 
building  at  Colvile  at  from  $70,000  to  8120,000.     I  b. 

Thinks,  if  he  bought  Fort  Hall  at  $1,000,000,  he  would  got 
his  money  back  by  turning  it  into  a  zoological  park  !  !  lb.,  p. 
162. 

John  M.  AVark, 

Is  a  chief  trader.     lb.,  p.  189. 

Testifies  circumstances  under  which  Company  left  Vancouver, 
lb.,  p.  189. 

3.  It  will  thus  be  seen  tiiat  the  Company  have  relied  in  a  very 
large  degree,  in  the  proof  of  their  claim,  on  the  evidence  of  per- 
sons in  their  service,  who  have  a  direct  pecuniary  interest  in  the 
result.  If  the  evidence  of  tlicse  witnesses  were  stricken  out, 
the  Company  would  have  but  little  to  stand  upon.  It  is  sub- 
mitted that,  in  comparing  this  evidence  with  the  evidence  of  the 
numerous  witnesses  introduced  by  the  United  States,  ample 
allowance  should  be  made  for  the  evident  bias  under  which 
the  interested  witnesses  speak,  as  manifested  l)y  the  monstrous- 
ness  and  ilagitousncss  of  their  extravagant  estimations.  Tlieir 
falsehood  is  established  by  numerous  witnesses  produced  on  the 
part  of  the  United  States. 

This  important  fact,  which  we  have  just  referred  to,  namely, 
the  effort  of  the  Company  to  make  out  its  case,  especially  on  the 
point  of  value  of  the  various  posts,  in  such  a  large  degree,  by 
interested  witnesses,  receives  vast  additional  signification, 
when  we  remembei  that  the  Company  hav'c  in  their  possession 
the  books  of  the  various  posts,  which  would  show  i)re(usely  the 
cost  of  each,  at  least  so  far  as  the  items  of  materials  and  wases 
are  concerned,  wnicli  are  indeed  the  only  substantial  items  of 
cost  in  the  case. 

That  this  conduct  of  the  Company,  in  relying  upon  the  bubble 


81 


and 


bubble 


te.stimony  oPintorosteil  witnesses  to  prove  their  (!ase,  when  they 
persistently  refuse  to  proJu(^c  their  books,  must  weij^h  fatally 
against  thcMu,  we  cannot  but  assuin(>.  In  a  ease  before  any 
oourt  of  justice,  in  a  suit  between  individuals,  sucii  conduct  on 
the  part  of  the  plaintilf  would  furuisii  conclusive  presunii)tioii 
of  bad  faith,  which,  unexplained,  would  necessitate  a  verdict 
for  defendant. 

4.  The  important  ro?f  performed  by  Factor  ]N[actavish,  as  wit- 
ness and  agent  of  the  Company,  demands  a  special  notice  of  his 
testimony. 

(a)  Mr.  Mactavish  has  been  in  the  continuous  service  of  tlic 
Company  since  LSo-'i,  rising  from  thu  position  of  clerk  to  the  high 
dignity  of  chief  factor.  J)uring  this  long  period  of  service  y\v. 
Mactavish  has  been  located  at  v^arious  and  distant  2)oints  in  the 
service  of  the  Company.  At  one  time  we  hear  of  him  among  the 
frozen  regions  of  IJalUn's  Bay,  next  at  the  post  of  ^Eechipecoton 
on  Lake  Superior,  tlieu  on  the  island  of  Montreal,  in  18^19 
hii  crossed  tiie  Rocky  ]\[ouutains,  the  next  year  he  retraced  his 
steps  to  JJaltin's  P>\y.  We  next  hear  of  him  at  Vancouver, 
.San  Francisco,  tlie  Sandwich  Islands,  and  Fnghind;  and  finally 
he  ap[)ears  in  Canada  and  this  portion  of  the  United  States,  for 
the  purj)ose,  principally,  as  it  seems,  of  supervising  the  prosecu- 
tion of  the  Company's  claim,  and  incidentally  of  giving  evidence. 

We  have  referred  thus  to  Mr.  ^Ia(!tavish's  history,  in  order  to 
show  the  important  position  he  occupied  as  an  official  in  the 
Company.  (Jne  so  long  in  the  service  of  the  Company,  trans- 
ferred in  his  career  from  one  locality  to  another  so  widely  se]>a- 
ratcd,  and  finally  engaged  in  the  most  important  matter  which 
this  powerful  Company  now  has  pending,  must  occupy  a  very 
distinguished  position  in  the  official  ranks  of  the  Company. 
It  IS  fair  to  presume  that  no  official  of  the  Company  of  his 
grade  possesses  a  larger  degree  of  its  confidence,  and  is  more 
familiar  with  its  history  and  oifleial  acts,  its  j)urposes,  wishes, 
and  clain'K,  so  far  at  least  as  this  ease  is  concerned. 

He  may  justly  be  considered  in  this  case  as  the  embodiment 
of  the  Company,  its  type,  and  representative. 

These  circumstances  give   peculiar  importance  to  his  testi- 

monv,  and  justify  us  in  a  closer  scrutiny  of  it,  than  of  the  cvi- 
11 


82 


I 


dcnce  of  ordinary  witnesses.  When  Mr.  Maetavish  is  on  the 
stand  it  is  in  effect  the  Company  in  propria  px^'^'^ono.  AVlicn 
]\Ir.  J\[actavish  speaks,  it  is  the  voice  of  tlic  Company  A^•c  Jiear. 

AVitli  these  remarks,  \ve  proceed  to  consider  Mr.  ]\L;ctavis]i's 
testimony. 

{/>)  A\  hy  Mr.  Maetavish  is  here. 


3  I 


"Int.  114.  Are  you  not  really  Iiere  acting  as  client  in  this 
case. 

"  Ans.  I  am  here  not  as  client,  but  as  a  chief  factor  of  the  Hud- 
son's Bay  Coni]>any. 

"Int.  115.  Arc  you  not  here  as  an  agent  of  that  Company,  to 
look  after  their  interest  in  this  case  ? 

"  Ans.  I  suppose  I  am. 

"Int.  IIG.  Under  whose  directions  or  orders  are  you  here? 

"  Ans.  My  orders  come  from  the  Hudson's  l^ay  J  louse  in  Lon- 
don. 

"Int.  117.  When  did  you  receive  those  orders? 

"  xVns.  I  left  London  on  the  28t]i  of  October,  18(54,  previous  to 
which  I  received  my  orders ;  since  then  I  have  occasionally  had 
communications  with  the  house." 

It  will  thus  be  seen  that  Mr.  Maetavish  is  present  during  the 
progress  of  this  case,  as  the  real  representative  of  tlie  (V)mj)any, 
under  direct  orders  from  London.  He  sa)'s,  in  answer  to  Int. 
104: 

"My  princij>al  duty  at  present  is  in  Washington,  looking 
after  tlie  proceedings  going  on  before  the  Connnissioners  in  this 


case 


jj 


In  answer  to  Int.  105  he  says : 

"  I  did  go  from  :Montreal  to  that  place,  (Charlotte,  X.  C.,) 
and  Avas  present  when  Admiral  AVilkes  was  examined." 

In  answer  to  Int.  110,  "Have  you  not  been  ])resent, and  have 
you  not  desired  to  be  present,  at  the  examination  of  various  other 
witnesses  of  the  United  States  in  this  case  since  January  last,"  he 
says : 

"  I  have  been  present  of  my  own  desire." 

Thus,  when  we  consider  the  able  counsel  by  whom  the  Com- 


83 


;•  tho 
my, 
Int. 


this 


liavo 
tlior 
"ho 


■} 


pany  were  ropresoiitcd  in  the  coiidiiet  of  this  eau^sp,  tlic  voiy 
gTwit  ini[)ortaii('e,  attached  to  ^Ii\  Mactavisii's  services  l)v  the 
Company,  becomes  inaiiit'est.  Even  in  the  matter  of  examinin*^ 
witnesses,  it  was  deemed  Important  for  ]Mr.  Mactavish  to  he  on 
Jiand.  ISo  liicewise  in  the  pre})aration  of  the  memorial,  Mr. 
Mactavish's  valnabk;  services  are  called  into  re(j[nisition.  On 
being-  asked  (Int.  12-j)  if  lie  did  not  assist  the  connsel  in  prepar- 
ing the  memorial,  he  says : 

"  I  believe  I  tlid  so."  Miscellaneous  evidence  for  the  United 
States,  p.  05. 

AVe  propose  now  to  point  out  some  of  the  peculiarities  of  Mr. 
Mactavish's  testimony. 

((;)  In  reference  to  the  buildings  at  Vancouver,  ho  says,  in 
answer  to  Int.  5,  first  examination: 

"  In  184G,  the  establishment  at  Vancouver,  with  its  out-build- 
ings, was  in  very  thorough  order,  having  been  lately  nearly  all 
rebuilt."     Company's  Evidence,  p.  200. 

Again  he  says:  "  U])  to  the  time  I  left  Vancouver  in  18o8j 
the  buildings  in  the  occupation  of  the  Company  were  k(!pt  in 
thorough  re])air."     Jb.,  p.  201. 

Upon  this  point  other  witnesses,  with  ample  personal  know- 
ledge, of  unim[)eachable  character,  and  not  swearing  up  a  bogus 
claim,  positively  c;ontradict  and  fully  dis[)rove  these  statements 
of  ]Mr.  Mactavish. 

The  Hon.  Mr.  Xesmith  says!  "As  far  back  as  184'),  the 
buildings  were  becoming  wrecked  and  <lilapidatcd  on  account  of 
the  insuiliciency  of  the  foundations."     U.  S.  Evidence,  part  2, 


pa; 


ire 


23. 


oni- 


Lloyd  Brooke,  in  1849,  speaks  of  several  of  the  houses  as 
dilapidated.  Speaking  in  reference!  to  18()0,  "  I  think  there  had 
b^ien  no  repair-*  on  the  buildings,  and  they  had  sulfered  the  usual 
wear  often  or  eleven  years."     lb.,  ])age  12i). 

\V.  ir.  Gray,  referring  to  a  period  substupient  to  18.'}(),  says: 
"  .Vll  the  old  buildings  were  prop[»ed  u[),  and  were  in  a  miser- 
able condition,     lb.,  pagi!  I(i4.      Further,  he  s;iys,  s])eaking  of 
sometime  after  184(j,  "the  main  house  was  in  rather  a  sliaUy 
condition."     lb.,  page  181. 

Lewis  Love  says,  from  1850  to  1854,  "the  buiMings  were 


"i 


'  *  . 


84 

getting-  pretty  okl  from  appeunmee.  *  "'  Sojuo  of  tlie  flooi's 
were  settling  out  of  shape.  *  '^-  The  outMard  a})pearan('e  of 
the  buihlings  hjoked  as  if  they  were  going  to  deeay."  11),, 
l)age  237. 

Levi  Douthet  says,  in  1853,  "tlu*  buildings  looked  very  old; 
tlie  sills,  1  think,  were  inueh  deeayed."      II).,  page  24G. 

General  Ingalls,  speaking  in  referenee  to  iSdO,  says  the  buihl- 
ings were  "  very  dilapidated."     lb.,  page  V>. 

Colonel  C.  13.  AVagner,  speaking  of  l«So7,  says:  "The  build- 
ings were  old,  and  some  were  very  nuieh  dila[)idated."  United 
States  Evidenee,  part  2,  page  50. 

Major  Chauncey  MeKeever,  referring  to  1<S()0,  says :  "They 
(the  buildings)  were  all  in  a  dilapidated  eondition."     lb.,  ]).  78. 

Major  General  A.  J.  Smith,  reilL-rring  to  LSOO,  says  the  build- 
ings "were  very  dilapidated;  not  habitable."     lb.,  page  84. 

Major  Alfred  Pleasanton,  speaking  in  regard  to  the  interval 
of  time  from  1858  to  18(50,  savs :  "The  whole  establishment 
was  out  of  repair,  dilapidated."     lb.,  page  l.')5. 

Major  General  V.  H.  Sheridan  says,  referring  to  LS55-'50, 
"the  large,  gloomy  looking  storehouses  insid(>  the  pieket  enclos- 
ure were,  I  think,  very  old,  *  *  and  had  the  deeay  of  old 
age."     lb.,  page  207. 

General  lienjamin  Alvord  says:  "In  1859,  when  the  Com- 
pany left,  the  buildings  were  most  of  them  very  much  di]a[)i- 
dated."     lb.,  page  351. 

George  Gibbs  says :  "  The  buildings  in  and  outside  of  the  fort 
were  all  old  and  considerably  deeayed."     lb.,  page  408. 

So  much  upon  this  point. 

((?)  Mr.  Maetavish  says,  Com])any's  Evidence,  ])age  212:  "At 
the  diftercnt  establishments,  particularly  at  Eort  Vanei)uver, 
there  were  roads  made  at  considerable  outlay." 

Wc  caiuiot  see  how  the  roads  at  Vancouver  should  cost  so 
much,  for  the  soil  there  is  generally  gravelly. 

On  this  point  Lloyd  Brooke  says,  in  reference  to  the  roads  at 
Vancouver :  "  1  know  of  no  roads  of  the  same  character  in 
Oregon  ;  they  arc  better  than  the  ordinary  roads  in  ()reg<in  on 
which  I  have  travelled,  owing  to  the  nature  of  the  soil  and  line 


85 


JOIU- 

api- 
."  fort 


u 


At 


)St     !?0 


of  tlio  country.     The  roads  Icadinji'  to  most  of  tlic  plains  l)t'foro- 
nientlonod  ])ass  over  oravolly  soil." 

Major  Ja.  ^fcFcrlv  savs  of  the  land  around  Vancouver,  hack 
of  the  stream  :  "  It  was  not  fertile,  beinji'  sandy  and  liravelly  and 
very  dry  durinji'  the  summer  season."     lb.,  ])a<;'e  121. 

Afajor  .Vli'red  I'leasanton  says  the  land  around  N'ancouver 
was  "uravelly  and  poor."     lb.,  pau'c  l.'UJ. 

In  short,  without  citinii'  I'urther  from  the  evidence,  we  may 
assume,  as  a  fact  beyond  dispute,  that  the  land  around  N'ancouver 
Mas  sandy  and  ji'ravelly ;  such  bein<^  the  fact,  the  cost  of  roads 
could  not  have  been  nuich. 

(r)  Fiu'ther,  ]Mr.  Mactavish  estimatesth(>  valneof  the  establish- 
ment at  \'ancouver,  with  its  outbuildin<;s,  in  1S4(!,  to  the  Com- 
pany, at  fr(»m  $.'>()( ),(X)()  to  8< )(»(),()()(,).  Company's  Kvi<U'nce, 
paoe  200. 

It  is  instructive  to  s(H'  the  value  [)nt  by  other  witnesses  on  this 
establishment. 

Ca])tain  W  .  A.  Howard  says:  "The  buildinijs  were  rude 
structures;  made  of  the  wood  of  tlie  countrv  ;  built  bv  the  com- 
nion  labor  of  the  day  ;  I  think  $100,000  would  be  a  larii'c  allow- 
ance for  Ijuildinii;  the  fort  and  all  its  appurtenances.  United 
vStates  Evidence,  ])art  2,  pau'c  (u,  Ans.  4. 

C.  Mclveever  says,  in  l.S(jO,  "I  inspected  the  buildings  in 
June,  18()0;  I  considered  the  whoh;  of  them  worth  about 
$1,000.     United  States  Eviik'uee,  part  2,  pa.ue  7S,  Ans.  (>. 

Major  (ieneral  Inu'alls savs  he  "could  have  built  the  Ibrt  with 
its  stocka(k'  and  buildinu's,  within  three  vears  before  1(S4J),  for 
$.jO/)0()."  Uiuted  States  Evidence,  ])art  2,  i)a,<.(>  r>2<l,  Ans.  .■>. 
"Thinks  one  hundred  men,  ten  bcin^-  skilled  and  the  rest  ordi- 
narv,  could  hive  built  post  nntstlv  in  the  eourso  of  a  vear.  lb., 
l)a_<2,'e  o.'>(),  Ans.  (J. 

Chief  Justice  Xelson  says,  in  relerence  to  this  p^nt:  "The 
orij^inal  cost  I  know  nothinii'  about,  except  as  Dr.  Mcliau<ihliu 
toklme;  he  state  I  it  cost  about  §100,000,  all  told;  as  to  their 
value  in  18-V2  it  is  dilHcult  for  me  to  answer;  they  had,  in  my 
judginent,  outlived  their  day."  United  States  Evidence,  part  2, 
pajre  80,  Ans.  10. 


*.  i. 
■  V'l 

'}  •■'■■ 


86 


CM[)tiiiii  C  Ji.  \Vn<rn(n'  says  in  1801  biiildinn;  witliin  stockado 
not  Avorth  over  $(j,0()(>  or  §8,000.  Uniti'<l  States  Kvi<l('iU'C',  [)ai't 
2,  i)a,u('  (]0. 

Major  (iciicral  A.  .J.  Smith  says  in  I8(j0  the  valiU!  of  the 
(^to('ka(l(!  and  hiiildiiijis  to  th(!  (loveniincut  woidd  not  ho  over 
$2  ")0 ;  "they  were  ^'oiniL!;  to  decay  ra[)idly;  dry  rot."  United 
States  I'Aidence,  ])ai't  2,  ])a<>;e  84. 

:\ra;)(»r  Uohen  McFeely  says:  "To  the  United  States  tlie 
bnihliiiii's  liad  no  vahie  at  all  in  J8()0,  either  as  storehonsts  or 
lor  (|nai'ters."  United  States  Kvidenee,  |)art  2,  pai^e  111*,  A  lis.  o. 
Major  (ieneral  P.  11.  Sherichin,  reterrint;"  to  LSoo— 'oO,  says: 
"  1  can  reeolleet  very  well  that  niy  impressions  at  the  time  wen; 
that  it  would  he  a  ^ood  thiiiu'  if  they  (tlu!  biiildin«>'s)  would  hnrn 
<h>wn."     1  nited  States  Kvidenee,  part  2,  pane  28(5,  Ans.  4. 

T.  \\.  Peale  does  not  think  the  erection  of  the  hnildinns  and 
stockade  eonhl  have  cost  over  !*>2"),0()0.  United  States  Kvidenee, 
])art  2,  paiic  ;>4(),  Ans.  12. 

(Jeiieral  JJenjaniin  Alvord  estimates  tlie  valne  ol'  the  stockade 
and  all  tli"  hnildiiius  owned  by  the  conij»any  within  the  j)ickets 
in  ] 8o2  at  about  §25,000.  United  States  Evidence,  part  2,  page 
:Jol,  Ans.  (J. 

AVithont  ])nrsiiiiig  this  iioint  any  further,  Ave  may  safely  con- 
clude that  the  testimony  (»f  Mr.  Mactavish  is  not  reconcilable 
■with  any  hypothesis  of  common  truth  or  good  faith,  and  stands 
Jiere  in  ])riiir  to  his  dishonor  as  a  gentleman  and  a  man. 

(_/")  in  his  lirst examination  ]Mr.  Mactavis'i  inibrms  ns, "I  never 
had  any  particular  charge  of  the  farming  ojieratioiis  of  the  coni- 
jiany.  My  particular  work  was  \vith  the  books,  but  I  rode  about 
and  knew  jiretty  much  what  was  going  on."  Company's  Evi- 
dence, page  22'),  Ans.  11. 

This  declaration,  mtide  in  the  first  step  taken  by  him  as  a  wit- 
ness, gave  hopc^  f(»r  miicli  valntible  information  ;  but  on  his  final 
examinitioii  Mr.  ^[act:lvish,  after  a  larger  experience  of  the  wit- 
ness vocation,  is  inclined  to  take  a  much  more  modest  view  of 
his  capabilities  for  giving  informtition.  X^'ry  much  to  our  sur- 
])rise,  after  the  st;'k'ineut  mad(!  by  him,  to  which  we  have 
allndiHl,  he  infi)rms  us,  in  answer  to  int.  41H),  that  "  My 
acipiaintauee  with  the  lands  used  by  the  company  arose  siini)ly 


87 


stockado 
iit'c,  part 

X)  ol*  the 

Ix;  f)vcr 

United 

ates  the 
loust's  or 
,  Alls.  ~). 
•(),  savs : 
nic  wvw. 
idd  hum 
s.  4. 

iiiji'.s  and 
iVidencc, 

.st(K'l<adc 
0  piclvc'ts 
•t  2,  page 

fely  ron- 
oneilable 
d  .stands 

L. 

"I  never 
tlie  coni- 
)de  about 
ly'.s  I']vi- 

as  a  Nvit- 
liis  Jinal 
'the  wit- 
;  view  of 
our  sur- 
\vv,  have 
at  "My 
e  simply 


nMu  ruhu,,.  about  at  times;  I  hti.I  no  <.haru-e  nhalev.r  of  th.^ 
Mrm.no-  op.,atious  of  the  .-ompany,  so  that  I  knew  but  li.th-  as 
toNvhat  was  gomu- ou  upou  the  hu.,ls,  in  eo,„,.anso,.  uith  (ho 
otheer  or  olluvrs  in  <.haro,.  who  ha.l  that  sp.vial  d.Ltv  iu  .-l.ar.v  " 
_  Wiu^ther  .Mr.  Ma.-tavish's  (irst  n.nlidenee  in  his  ju.au's  of 
inlormat.on,  or  his  subsHpu-nt  .lillidcnee  upon  the  subject,  i.  the 
best  founded,  we  will  not  pr(>teu.l  to  say.  Jt  appears  to  us,  how- 
ever, not  uulik(>ly,  judnin.  r,.,.u  the  character  of  his  evi.h.uce 
that  lie  did  at  the  outset  place,  p.-rhaps,  too  hi^h  an  estiu.ate  upon 
the  value  of  h,s  information.  ( )u  th(>  other  baud,  we  incline  to 
tlie  opinion  that  Mr.  Ma.-tavish  permitt,-d  his  .nodestv  to  hive 
too  orcat  ])Iay  towards  the  close  of  his  exann-natiou.      ' 

(V)  As  an  illustration  of  this  excessive  luodcstv  we  would  call 
attention  to  some  extracts  from  his  testimony : 

Int.  U]:].  Was  n,.t   Dr.  ArcLauuhlin  cei.s.n-ed   bv  the  Com- 
pany's dn-eetorsfbr  his  kindness  to  American  imminrants? 

Alls.  Jle  never  said  so  to  jue. 

Int.  014.  J)o  you  not  know  that  lie  was? 

Ans.  1  do  not. 

Int.  91  o.  W'Jijit  do  you  know  about  the  matter? 

Ans.  I  know  nothino-  further  than  I  have  said;  1  do  not 
know  that  I  know  anything'  about  it. 

Int.   1)10.     Did  you  ev.H-  own  any  of  the  stock  of  the  Puoct's 
►Sound  Agricultural  Comi)anv?  '"^ 

^viis.  I  believe  I  had  two  shares. 

Int.  917.   When  did  you  come  in  possession  of  them? 

Ans.  Some  time,  I  think,  in  the  year  LS;]9  or  1840.' 

Jut.  918.   Do  you  own  them  now? 

Ans.  I  think  so. 

Int.  919.  AVhat  is  their  par  value? 

Ans.  I  do  not  know;  I  have  no  papers  here  to  refer  to  •  I 
recollect  nothing  about  them,  except  the  fact  that  I  have  the  tno 
shares. 

Int.  920.  How  much  have  you  ever  paid  on  them  ? 
Alls.  I  think  I  jiaid  £10  a  share. 
Int.  9^1.  Did  you  j)ay  that  iu  the  beginning? 
Ans.  I  think  so.     I  cannot  say. 


I 
.1- 

f 

■%'■ 


}M- 


88 

Int.  922.  Have  yoii  paid  anythinj;  on  thorn  since? 

An.s.   r  do  not  rcnicniber  to  have  done  so. 

Int.  1)2.').   Have  you  received  any  dividen<ls  upon  them? 

Ans.  I  think  so. 

Int.  924.  M'hen  was  your  first  dividend,  and  what  was  it? 

^\ns.  I  do  not  recollect;  it  was  some  time  a,<i"o. 

Int.  {125.  When  was  your  last  dividend,  and  what  was  it? 

.Vns.  That  I  cannot  answer,  neither  as  to  time  or  amount. 

Int.  927.  What  was  the  capital  stock  of  the  Com[)any  ? 

Ans.  1  cannot  say. 

(A)  In  reference  to  the  cattle,  Mr.  Mactavishsays :  "There  must 
liive  been  a  good  many  cattle  lost  in  the  winter,  from  time  to 
time."  Co.'s  Ev.,  p.  224,  ans.  20.  In  the  iinal  examination 
Mr  Mactavish  seems  disposed  to  review  and  overrule  his  first 
opinion  on  this  ])oint.     He  says,  in  answer  to — 

Int.  .')94,  "  Were  not  a  a  great  many  cattle  lost  in  the  winter 
from  time  to  time?" 

"  Ans.  I  don't  know  that  there  were  absolutely  many.  U. 
S.  Miscellaneous  Ev.,  p.  108. 

Which  of  these  statements  is  correct  wc  will  not  undertake  to 
say,  but  our  impression  is  that  the  first  statement  is  nearer  the 
truth  of  history,  and  we  think  Mr.  Mactavish  might  have  safely 
stood  upon  it,  without  fear  of  contradiction. 

(/)  In  iiis  first  examination,  Mr.  Mactavish  says,  in  regard  to 
the  eastern  line: 

"I  think  there  was  some  boundary  marked  or  blazed  out  for 
a  mile  or  two  back  from  the  river. 

"(^ues.  IG.  Did  you  ever  see  any  such  marks  or  boundary 
line? 

"  Ans.  !My  impression  is  that  I  have  seen  them,  but  I  could 
pot  be  positive,  it  is  so  long  since  I  was  there."     Co.'s  Ev.,  p. 

In  his  final  examination  Mr.  Mactavish  savs : 

"  Int.  44-'>.  Did  you  ever  sec  these  blazes? 
"Ans.  I  have  some  recollection  of  seeing  them. 


89 

"liif.  111.  Sliito  all  tliiit  you  distinctly  rooollont  nUout  tlu-so 
blazes. 

"  A  us.  r  ri^t'i)llo!'t  tlio  ti'o's  bltizotl  tlioro  about  a  mile  inland, 
t\w  [!■('(>>  were  bln/cd  licrc  and  thoro. 

"Int.  l-")().  I[()\v  lonii"  a  distanco  do  yon  think  that  you 
renuMiibcr  that  you  saw  that  the  trees  Avere  blazed? 

"Ans.  l-'roni  a  (|uartov  to  half  a,  mile."  U.  S.  Ev.,  ^Eiseol- 
lancous,  pp.  114,  115. 


This  evidence  is  curious  as  showinsj  that  memory  may  ')ecomo 
more  vivid  with  the  llii::ht  of  time.  When  jNIr.  ]\[aotavish  was 
first  examined  he  could  not  be  positive  that  he  liad  ever  seen 
the  blazes  on  the  tre;vs,  "it  was  so  lon<>;  sin(!e,"  but  in  his  last 
examination,  his  nuMuoiy,  from  some  unknown  cause,  had  im- 
j>roved,  and  he  roniembored  that  the  trees  were  really  blazed 
al)out  a  mile  inland.  IJut  in  the  twinklim^  of  an  eye  his  mem- 
ory aiiain  became  impaired,  and  ho  only  remenibor.s  scoinj^  that 
the  trees  were  l>lazed  from  a  ([uartcr  to  half  a  mile. 

In  deliuinti;  the  boundaries  of  the  land  at  Vancouver,  ]Mr. 
Mactavish  savs  the  lines  runniny;  inland  from  the  river,  run  in 
a  northerly  direction.  Answer  to  Jut.  341,  p.  99.  Jilut  immc- 
diatelv  on  boinir  shown  the  map  of  the  surroundiny;  couutrv,  he 
admits  that  he  should  have  said  the  line  running  inland  from 
the  mouth  of  the  Cathlai)Ootle  must  run  in  an  eastern  direc- 
tion. 1'his  was  a  very  important  error,  and  does  not  impress 
us  with  the  witness'  care  in  defining  boundaries. 

(/•)  ]N[r.  Mactavish  says,  in  reference  to  Vancouver,  in  answer 
to  Int.  (]{]•),  U.  S.  ]\fis.  E.,  ]).  145,  "  I  don't  know  now  what  the 
Comj^any's  actual  land  claim  there  is." 

This  seems  very  strange,  when  m'C  remember  that  the  witness 
is  here  as  the  representative  of  the  Company.  Further,  on  tiiis 
2>oint,  the  witness  says  : 

"Int.  G54.  Did  vou,  at  the  time  vou  wrote  the  letter  referred 
to  in  'interrogatorv  G47,'  know  the  claim  or  claims  to  land  on 
the  Columbia  river,  near  Vancouver,  made  by  the  Hudson's 
Bay  Company. 

"  Ans.  I  was  not  aware  what  the  claim  was." 

Again,  he  says,  in  answer  to  Int.  837,  that  he  knows  "only 
12 


00 


'  '     'i  ! 


ik' 


m 


by  supposition"  that  the  tract  of  land  around  Vancouver  was 
claimed  l)y  the  Company  Ix-fore  1840.  T^.  S.  ]Mis.  Kv.,  p.  99. 
When  he  is  asked,  "Int.  .'ioS.  Why  do  you  supjjose  they  (the 
Company)  claimed  it  (the  land  at  Vancouver)  before  1840," 
he  says,  "  because  the  Company  used  and  occupied  the  land." 
Further: 

"Int.  I3.'}9.  Have  you  any  other  reason  for  supposing-  they 
claimed  it  before  18G0." 

Ans.   Not  that  1  remember  of." 

One  of  the  chief  factors,  and  one  stationed  at  Vancouver,  does 
not  remember  havinjij  any  other  reason  for  sujjposing  that  the 
Conn)any  claimed  this  land,  e.\ce[)t  that  at  one  time  they  had 
nse<l  and  occn[)ied  it. 

(l)  There  is  one  further  statement  of  this  witness  to  which  we 
would  call  attention.     It  is  the  answer  to  Int.  150. 

"Int.  150.  Do  you  mean  to  say  that  one  hundred  and  fifty 
engaged  servants  of  the  Company  were  employed  for  seven  full 
years,  beginning  with  the  autumn  of  the  year  18.'i9,  in  making 
permanent  improvements  at  and  around  the  post  at  Vancouver? 

"  Ans.  There  may  have  been  a  greater  number  sometimes  and 
fewer  at  others,  but  to  the  best  of  my  knowledge  and  belief,  I 
think  that  number  was  so  employed  on  an  average  one  year  to 
another." 

This  statement  is  so  extraordinary  as  to  need  no  comment. 

(m)  Be  it  remeni  bered,  also,  that  all  this  peculiar  evidence  comes 
from  Mr.  INIaciavish  in  the  face  of  the  suppression  of  the  annals 
of  the  Company,  the  existence  of  which  is  proved  by  himself, 
which  would  have  constituted  the  best  and  highest  proof  of  cost 
as  an  element  of  value ;  and  the  non-appearance  of  which  is  so 
extraordinary,  Avhether  imputable  to  the  fault  of  the  agents  of 
the  Company  to  the  prejudice  of  it,  or  the  fault  of  the  Company 
to  the  prejudice  of  the  United  States. 

III.  Suppression  of  its  Accounts  ly  the  Company. 

The  Company  present  a  very  large  claim  against  the  United 
States,  which  consists  in  considerable  part  of  the  assumed 
cost  and  value  of  the  buildings  and  various  improvements  at 
the  different  posts  named  in  the  memorial. 


91 


luul 


Jnited 
sumed 
nts  at 


This  matter  of  the  buildings  and  improvements  at  the  posts 
is  made  one  of  very  great  importance  by  tlie  Company;  as  is 
evident  from  the  statement  made  by  Mr.  Mactavish,  that  one 
hundred  and  fifty  men  were  continuously  employed  at  the  one 
post  of  Vancouver  alone,  iji  the  improvement  of  that  place, 
for  seven  years,  from  1831>  to  1M40,  when  the  joint  occupation 
of  the  two  Governments  ceased. 

In  relation  to  the  buildings,  improvements,  and  other  mat- 
ters, it  was  therefore  extremely  important  that  the  books  of  the 
Company,  especially  the  books  setting  forth  the  transactions 
of  each  post,  should  be  produced  by  the  Company. 

The  production  of  these  books  should,  it  is  to  be  presumed, 
bo  the  very  thing  the  Company  should  desire.  Thus,  the  Com- 
pany would  have  been  able  to  approximate  at  least  to  the 
amount  expended  by  them  for  the  buildings  and  improvements 
at  the  different  posts.     Mr.  Mactavish,  says: 

"During  my  connection  with  the  place  (Vancouver),  then,  I 
suppose  the  outlay  could  be  found  in  the  local  books  of  the 
place,  that  is  to  say,  the  wages  and  material  used  for  the  build- 
ings." (Ans.  to  Int.  39,  U.  S.  Miscel.  Ev.,  p.  52.)  lie  fur- 
ther says,  he  thinks  he  has  seen  these  books  of  wages  paid  to 
servants  for  some  of  the  years  he  was  at  Vancouver,  and  that 
these  books  were  in  the  Company's  office  at  Victoria,  [lb.  p. 
53.)  lie  further  says,  it  was  the  custom  carefully  to  preserve 
all  the  books  of  the  Company.  Further,  he  states,  that  the 
Vancouver  books  were  taken  to  A'^ictoria.     [lb.  p.  54. 

Yet,  these  books,  so  important  to  the  Company,  have  never 
been  produced.  One  might  have  supposed  that  the  Company 
would  make  haste  to  produce  their  books,  as  showing,  by 
reference  to  them,  facts,  fixing  beyond  dispute  the  amount  of 
expenditure  on  the  different  posts.  But  though  the  Company 
had  it  entirely  in  their  power  to  produce  these  books,  and  thus 
ad(i  to  the  strength  of  their  case;  yet,  strange  to  say,  they 
have  not  thought  proper  to  do  so,  presenting  at  last  only 
abstracts  of  secondary  matters. 

Not  only  did  the  Company  fail  to  produce  their  books  vol- 
untarily, but  even  under  the  pressure  of  an  express  demand 


l« 


02 


h    il 


for  their  production  by  tlio  United  States,  the  Company  have 
not  produced  the  books. 

In  reply  to  Mr.  W.  Carey  Johnson,  Dr.  'rolmie,  represent- 
ing the  Company,  says,  under  date  of"  April  15,  1(SG7: 

"I  have  to  acknowled„'e  receipt  of  your  letter,  chited  N'ic- 
toria,  April  11,  IcSGT,  applying,  as  you  therein  state,  by  diiec- 
tior»  of  Mr.  Cushing,  for  access  to  books,  and  information  on 
various  points,  far  beyond  "what,  under  my  only  instructions 
on  the  subject  from  Mr.  Day,  of  which  you  have  received  a 
copy,  I  conceive  myself  authorized  to  furnish.  I  regret,  there- 
fore, that  I  cannot  comply  with  your  re(|ucst." 
U.  S.  Miscellaneous  Ev.,  p.  201. 

That  there  were  books  shoAvirig  the  expenditures  for  im- 
provements at  the  various  posts,  is  evident  from  the  evidence 
of  Mr.  Mactavish  previously  cited. 

That  these  books  were  preserved,  and  in  poss'  sion  of  the 
Company,  also  appears  from  Mr.  Mactavish's  testi     niy. 

Such  being  the  fact,  why  Avcre  these  books  not  produced, 
on  the  demand  of  the  United  States? 

It  was  the  interest  of  the  Company  to  produce  these  books 
in  the  first  instance,  if  they  corroborated  the  statements  of  the 
memorial.  But  it  became  especially  incumbent  on  tin  Com- 
pany to  produce  the  books,  after  the  demand  of  the  United 
States,  because  failure  to  produce  them  could  not  but  preju- 
dice the  Company's  claim. 

Take  the  case  of  an  individual  who  is  called  upon  to  produce 
his  books,  where  it  is  known  tliat  entries  are  made  throwing 
light  upon  the  matter  of  litigation  ;  and  suppose  he  declines 
to  produce  his  books  : — what  inference  is  drawn  ?  The  natural 
inference  is,  that  his  books  will  benefit  his  adversary  more 
than  himself. 

The  same  inference  must  bo  made  against  the  Company  in 
this  case.  The  Company,  beyond  all  dispute,  have  possession 
of  the  books.  The  books  would  show  the  expenditures  made 
on  improvements.  This  information  is  one  of  the  very  matters 
in  controversy.  Yet  the  Company,  instead  of  producing  the 
books  which  would  furnish  us  with  facts,  produces  Mr.  IMao- 


books 

of  tho 

Com- 

uiteil 

)V0Jll- 

xluco 


oWlIli' 


liny  111 

icssiou 

made 

lattevs 

>;  the 


tuvisli,  or  Mr.  Toliiiic,  or  Sir  Jatnos  D()U<^las,  to  testify  from 
mcmorv,  witliout  vouchors,  as  to'  tlio  cost  ami  value  of  tlitj 
structures  and  other  iinprovemcnts,  including  niills,  behuig- 
in^  to  the  CoMipany. 

Tlic  failure  of  the  Oom[)any  to  produce  their  books  is  a  fact 
of  great  significance,  involving  all  possible  conclusions  against 
the  Com|)any. 

Indeed,  by  the  statutes  of  the  United  States,  non-produc- 
tion of  books  by  a  party  plaintiff  subjects  him  to  non-suit. 
(Act  of  Sept.  24,  178!>,  U.  S.  Laws,  vol.  1,  p.  82.)  (See  lasigi 
I'.  IJroAvn,  1  Curtis'  (J.  (J.,  4(>1.)  And  e(|uity  would  coinpcd 
production  under  similar  penalty.  (1  Greenf.  Ev.,  by  Jtedfield, 
555-9,  ajid  «t'7.) 

At  various  stages  of  the  evidence,  as  well  that  of  the 
Hudson's  Pay  Company  as  that  of  the  Unitc<l  States,  the  (Jov- 
ernment,  it  appears,  made  frequent  efforts  to  obtain  access  to 
the  books  of  the  Company. 

We  sought  for  them  at  Montreal  ;  and  there  we  were  referred 
to  London. 

The  claimant  Company  had  repeatedly  and  urgently  notified 
the  United  States  of  its  earnest  desire  to  take  evidence  in  Lon- 
don :  in  consequence  of  which  the  Government,  at  considerable 
expense,  employed  special  counsel  to  attend  to  that  object  ; 
but,  when  the  time  for  action  arrived,  the  Company  backed 
out,  and  trave  notice  that  it  did  not  intend  to  take  anv  te^ti- 
mony  in  Great  Britain.  (U.  S.  ]Misc.  Ev.,  \)\).  1-11.) 

Hereupon,  the  United  States  took  upon  itself  the  disadvant- 
age of  itself  calling  on  the  Hudson's  J3ay  Company,  and  also 
on  the  Puget's  Sound  Company,  at  the  seat  of  their  power,  in 
London,  for  the  information  which  the  ollieers  of  the  Company 
in  America  had  refused  or  dec  ined  to  furnish  :  thus  ct)nvert- 
ing  the  head  oHicers  of  theComj  anies  themselves  into  witnesses 
of  the  United  States. 

To  be  sure,  the  Government  found  it  no  easy  task  to  discover 
the  liuhttat,  or  even  the  personality,  of  either  Company. 

We  put  upon  the  scent  of  the  Companies  one  of  the  most 
sagacious  attorneys  accessible  to  us,  and  he  pursued  the  faint 
traces  of  them,  which  he  could  discover,  with  eouuuendable 


94 


>    •  fiS 


\ 


zeal  and  persistence,  and  all  the  keenness  of  perception  of  an 
expert  in  such  matters. 

It  appeared,  at  lengtli,  tliat,  in  the  task  of  hunting  down 
either  of  these  Companies,  the  representative  of  the  United 
States  was  engaged  in  an  expedition  not  less  artiuous  than 
that  of  tlie  adventurous  Nova  Scotian,  who,  in  the  innocence 
of  his  heart,  supposed  that  somewhere  in  England  he  might 
discover  the  Mother  Country. 

jMr.  Ilalvburton  did  at  length  detect  tho  Mother  Country, 
in  the  person  of  an  old  gentleman  by  the  name  of  Stephens, 
with  a  quill  over  his  ear;  and,  in  like  manner,  Mr.  Clarence 
Seward  unearthed  the  Hudson's  Bay  Company,  in  the  person 
of  another  old  gentleman  with  a  quill  over  his  ear,  of  the  name 
of  Roberts,  purporting  to  be  the  accountant  ot"  the  Hudson's 
Bay  Company. 

But  Mr.  Clarence  Seward  was  not  equally  successful  in 
finding  the  Puget's  Sound  Agricultural  Company  :  buing  put 
off.  as  to  that  Company,  by  reference  to  another  old  gentle- 
man, with  a  quill  over  his  ear,  of  the  name  of  Armit ;  and 
this  person,  after  all,  seemed  to  be  ''Ut  a  counterfeit  present- 
ment of  the  Puget's  Sound  Company,  seeing  that  he  was  in 
fact  registrar  of  shares  of  the  Hudson's  Bay  Company.  We 
submit,  that  here  was  a  case  of  superfetation  at  least,  if  not  of 
false  personation. 

However  this  may  be,  the  United  States  could  get  neither 
from  the  accountant  nor  the  registrar  any  satisfaction  touch- 
ing the  facts  under  iuvestiijation. 

If  Mr.  Roberts  and  Mr.  Armit  are  to  be  believed,  the  Hud- 
son's ]Jay  Company,  with  its  venerable  age  of  two  full  cen- 
turies, (the  Puget's  Sound  Company  docs  not  count,  that  being 
still  en  ventre  sa  mere,)  lives  in  torpid  ignorance  and  super- 
annuated unconsciousness  of  its  own  affairs,  like  a  fossilized 
image  of  incorporations :  receiving  cargoes  from  America 
and  transmitting  cargoes  from  England;  paying  bills  of  ex- 
change or  remitting  specie;  and  placidly  receiving,  or  failing 
to  receive,  dividends,  at  such  times  and  of  such  amount  as  Mr. 
Somebody,  hidden  somewhere  in  the  great  liyperborcan  regions 
of  this   continent,    between   the  Atlantic  and  Pacific  oceans. 


n  of  an 

^  down 
United 
IS  tlian 
tioccnco 
e  might 

ountrv, 
eplieiis, 
/larcnco 
!  person 
bo  niuno 
[udson's 

!ssful  in 
L'ing  put 
gentle- 
lit  ;  and 
present- 
was  in 
We 
f  not  of 

neither 
touch- 


ic 


Ilud- 

fiill  cen- 
ut  being 
d  super- 

ssilized 
i\nierica 
of  ex- 
failing 

;  as  Mr. 

ro<xioMS 

oceans, 


:,1' 


05 

mny  condescend  to  dole  out  to  the  confiding  stockholders  in 
London. 

But  of  tlic  necounts  of  the  Company,  the  official  accoujitant 
himself  knows  nothing;  that  is  a  brunch  of  useful  knowledge 
not  open  to  earjicst  inquirers  after  trutli  at  tlie  headquarters 
and  coroorato  centre  of  the  Hudson's  Bay  Company. 

Who,  then,  docs  possess  this  branch  of  valuable  knowledge? 

AVhy,  forsooth.  Dr.  Tolmie,  at  Victoria,  out  of  whom  the 
United  States  liad  already  labored  in  vain  to  extort  the  de- 
sired information  there;  and  Mr.  jNIactavish,  at  Montreal, 
who  had  in  like  manner  disav^j-^'ed  all  knowledge  on  the  sub- 
ject,    (U.  S.  ]Misc.  Ev.,  p.  ]").) 

In  this  dileinina,  the  Government  fell  back  once  more  on 
Dr.  Tolmie  and  Mr.  Mactavish. 

As  to  Dr.  Tolmie,  he  was  not  ready  or  willing  to  say  any- 
thing; but,  after  undergoing  severe  pressure,  he  at  length 
did  give  to  us  a  quantity  of  figures,  of  no  importance;  but 
declined  to  give  the  important  information  required  by  the 
United  States.  (U.  S.  Misc.  Ev.,  p.  180.) 

We  then  applied  the  screws  of  investigation  to  Mr.  Macta- 
vish  a  second  time,  and  diligently  labored  with  him  night  and 
day,  in  season  and  out  of  season,  in  the  pursuit  of  knowledge 
under  difficulties.  From  him  we  obtained  most  ample  and  sat- 
isfactory proof,  that  he  did  not  possess  any  definite  knowledge 
in  regard  to  the  material  facts,  which  had  constituted  his  oc- 
cupatio!!  as  book-keeper,  clerk,  accountant,  chief  trader,  and 
represenfative  agent,  of  the  Hudson's  ]Jay  Company,  from  the 
anno  Domini  of  1833  to  that  of  1867  inclusive,  the  date  of 
his  second  deposition  at  Washington  ;  although,  when  deposing 
previously  at  Montreal,  he  knew  everything  with  the  positive- 
ness  of  inspiration,  (not  divine,  but  of  the  Company's  counsel.) 

And,  so  it  happened,  that  the  long  examination  of  Mr.  Mac- 
tavish  at  Washington,  consisting  of  nearly  one  thousand  ques- 
tions and  answers,  occupying  one  hundred  and  forty-two  pages 
of  reasonably-compact  octavo  print,  wound  up  with  the  de- 
plorable catastrophe,  the  result  of  the  long-continued  appli- 
cation of  the  ^J6'//te  forte  et  dare   to   a  dumb  witness,  of  the 


I  I  hE 


96 

following  expiring   gasp,   which  is    the  last  wc  hoar  of  Mr. 
Mactavish  : 

''^  Jilt.  ^^f}2.  Will  you  please  produce  here,  for  examination 
by  the  United  States  or  their  counsel,  all  accounts,  iiccount- 
books,  and  letter-books  of  th.e  Hudson's  IJay  C()ni[)any  wliich 
were  kept  at  the  various  posts  of  that  Company,  south  of  the 
49th  parallel  of  uorth  latitude,  during  their  occupation  by 
the  Company,  together  with  the  regulations  under  wliich  their 
books  were  kept,  and  the  regular  forms  of  contracts  with  the 
Company's  servants? 

'•^  A.  I  cannot  say  wliethcr  I  will  prodneo  them  or  not." 

Such  is  the  melancholy  Jinale  of  all  the  painstaking  and 
praiseworthy  endeavors  of  the  United  States  to  extort  from 
the  Hudson's  T>ay  Company,  its  olliccrs — great  and  small — 
whether  at  the  centre  or  anywhere  between  there  and  the  cir- 
cumference of  their  power — a  single  fact  concerning  its  ex- 
penditures on  its  various  posts,  on  account  of  which,  by  means 
of  conjectures,  suppositions,  and  opinions,  it  presumes  to  de- 
mand millions  of  compensation  from  the  United  States. 

Wc  might,  perhaps,  have  filed  a  bill  of  discovery  in  aid  of 
the  ordinary  course  of  inquiry  by  deposition  ;  but  we  shrank 
from  the  waste  of  time  and  money  involved  in  such  a  line  of 
action. 

The  Government  now  stands  on  its  rights,  legal  and  equita- 
ble, and  says  to  the  honorable  the  Commissioners :  These  chum- 
ants  make  out  their  case  by  being  their  own  Avitnesses:  they 
have  filled  the  record  with  their  opinions  and  conjectures  in 
the  place  of  facts;  they  obstinately  refuse  to  communicate 
the  facts;  they  deliberately  suppress  the  information  which  it 
most  imports  the  Commissioners  to  have;  and  you,  the  Com- 
missioners, will  judge  these  parties  as  tliey  deserve  to  bo 
judged:  that  is  to  say,  you  will,  wo  trust,  reject  their  shame- 
less claims,  and  pay  no  heed  to  the  secondary  and  incompe- 
tent evidence  in  their  support  placed  before  you,  whether  by 
the  Hudson's  Bay  Compan3^  or  by  its  illegitimate  and  ficti- 
tious offspring,  the  Piiget's  Sound  Agricultural  Company. 

IV.    Testimony  of  Mr.  Gihhs. 

We  are  surprised  at  the  violence  of  the  attack  of  the  Com- 
pany's counsel  on  Mr.  (libbs. 


97 


of  Mr. 

ination 
ccoiuit- 
'  which 
I  of  tlie 
;ion  by 
i\\  their 
fitU  the 

tr 

nsj  and 
ivt  from 
small — 
the  cir- 
T  its  cx- 
y'  means 
3S  to  ile- 
s. 

n  aid  of 
t  shrank 
I  line  of 

cquita- 
chiini- 
:  they 

uros  in 

unicate 
which  it 

c  Com- 

to   be 

shame- 

compc- 

thcr  by 
I  ficti- 

iny. 


u 


This  testimony  is  not,  as  we  conceive,  so  important  as  to 
require  sucli  attack,  because  there  is  no  material  fact  testified 
by  him  which  has  not  been  proven  by  other  witnesses.  If 
his  testimony  were  struck  out  entirely,  it  would  not  alter  the 
result  in  the  slightest  degree.  Mr.  Gibbs  has  only  stated 
facts  testified  by  others.  It  sometimes  happens  in  a  case, 
that  it  turns  entirely  upon  the  evidence  of  a  single  witness. 
Then  it  becomes   essential   for  the   party,  against  whom    this 


ic  Com- 


cvidence  weighs,  to  destroy  the  witness,  it  possible,  ilence, 
in  such  case,  Ave  expect  counsel  to  bring  every  possible  force 
to  bear  to  accomplish  tliis  purpose.  But  in  the  instance  of 
Mr.  Gibbs  no  such  reason  existed  for  a  desperate  assault  upon 
him. 

The  points  attempted  to  be  made  against  him  are,  wo  think, 
most  signal  failures. 

The  first  exception  taken  to  Mr.  Gibbs  goes  back  to  1850, 
some  seventeen  vears  before  his  testimony  was  ffiven,  and 
refers  to  his  oilicial  action  as  deputy  collector  of  Astoria.  It 
appears  that  under  date  of  March  10,  1850,  Mr.  Gibbs,  as 
deputy  collector  of  Astoria,  addressed  a  communication  to  P. 
G.  Ogdon,  Esq.,  in  which  is  found  the  following  passage: 

"In  relation  to  the  schooner  'Prince  of  Wales,'  I  am  also 
obliged  to  inform  you,  that  slu  must  forthwith  obtain  a  permit 
from  this  office  for  the  navigation  of  the  river,  and  prove  her 
character  and  ownership  according  to  law,  and  that  hereafter 
siio  cannot  be  employed  in  any  other  than  the  actual  service 
of  the  Company,  as  (Icfined  in  the  second  article  of  the  treaty 
of  Oregon,  nor  be  allowed  to  navigate  the  Willamette  river. 
The  instructions  to  tliis  office  and  the  requirements  of  law  aro 
on  these  subjects  definite." 

The  first  observation  we  would  make  on  this  extract  is,  that 
the  statement,  "the  instructions  to  this  office  '''■  ''''  arc  on 
these  subjects  definite,"  must  be  taken  as  true,  until  counter- 
evidence  is  introduced.  No  such  counter-evidence  having  been 
introduced,  we  are  bound  to  take  for  granted,  that  such  in- 
structions were  given.  Such  being  the  case,  whether  tho 
instructions  were  right  or  wrong,  the  responsibility  for  thctn 
does  not  rest  on  Mr.  Gibbs,  but  on  the  Treasury  Department 

of  the  United  States. 
13 


98 


mm 

■  lini. 


\   >!:.;|.i'f  ^ 


:  mi 


But,  independently  of  the  protection  these  instructions  af- 
ford Mr.  Gibbs,  on  reference  to  the  comniuniciition  it  is  not 
perceived  tliat  an}^  serious  objectiou  can  be  taken  to  it.  If  wo 
"were  hiying  down  instructions  upon  the  subject  now,  tlic  only 
point,  (upon  which  there  would  probably  be  any  difference  of 
opinion)  is,  whether  the  Company's  vessels  could  be  employed 
in  any  other  than  the  actual  service  of  the  Company.  Upon 
all  other  points,  the  requisitions  made  by  Mr.  Gibbs  seem  en- 
tirely proper.  As  to  the  navigation  of  the  Willamette  river 
by  the  Company,  there  is  certainly  the  gravest  reasons  to 
doubt  whether  it  is  conceded  by  the  treaty.  Our  construction 
would  be  that  it  is  not. 

Upon  this  subject,  ]SIr.  Gibbs  says  : 

"As  regards  the  Prince  of  Wales,  I  have  to  say,  *  *  I 
acted  in  accordance  with  the  requirements  of  the  revenue  laws, 
and  under  the  adviee  of  Mr.  Ilolbrook,  the  United  States  dis- 
trict attorney."    (U.  S.  Ev.,  Pt.  2,  p.  419,  Ans.  to  Int.  48.) 

An  attempt  is  made  to  prejudice  this  proceeding  on  the 
part  of  Mr.  Gibbs,  by  supposing  that  he  had  an  interest  in  a 
rival  steamer.  But  it  does  not  appear  from  the  evidence 
that  he  had  more  than  a  temporary  and  contingent  interest  in 
such  vessel,  from  which  he  promptly  withdrew. 

It  is  clear  there  was  nothing  in  the  magnitude  or  certainty 
of  this  interest  calculated  to  improperly  influence  the  official 
action  of  Mr.  Gibbs. 

In  considering  this  point,  it  must  be  remembered,  injustice 
to  Mr.  Gibbs,  that  he  was  acting  as  deputy  collector,  and,  in 
law,  the  action  had  by  him  was  the  action  of  his  principal,  the 
collector-in-chief,  General  Adair.  In  the  absence  of  any  evi- 
dence to  the  contrary,  the  presumption  of  law  is,  that  Mr. 
Gibbs  merely  obeyed  the  orders  of  his  immediate  superior, 
General  Adair,  under  whom  he  acted.  It  does  not  appear  that 
General  Adair,  in  any  degree,  dissented  from  the  letter  of 
his  subordinate. 

When  we  consider,  further,  that  he  acted  under  the  advice 
of  the  district  attorney,  Mr.  Ilolbrook,  the  person  specially 
ap])ointcd  by  the  law  for  that  purpose,  we  cannot  see  that  any 
responsibility  can  attach  to  Mr.  Gibbs  in  the  premises. 


09 


ons  af- 

is  not 

If  wc 

ic  only 

enco  of 

iployed 

Upon 

3ein  en- 

te  river 

sons    to 

;ructiou 


ue  laws, 
ites  (lis- 
;.  48.) 

;  on  the 

'cst  in  a 

fevidcnco 

crest  in 

•tainty 
official 

justice 
and,  in 
)al,  the 
ny  evi- 
lat  Mr. 
ipcrior, 
ar  that 
;ttcr   of 

advice 
)ccially 
lat  any 


It  is  not  fair  to  Mr.  Gibbs  to  judp;o  him  exclusivGly  by  his 
action  in  rofcrcnco  to  tho  Prince  of  Wales.  His  entire  con- 
duct should  be  considered  as  deputy  collector,  in  regard  to  tho 
Company.  jNIr.  Gibbs  states:  "I  went  beyond  the  law  in  af- 
fonling  faculties,  which  nothing  but  the  necessities  of  tho 
country  would  have  justified."  (U.  S.  Ev.,  Pt.  2,  p.  419.) 
This  statement  is  uncontradicted;  indeed,  it  is  confirmed  by 
jNIr.  Ogden's  letter  of  March  2"),  18G0,  to  Mr.  Gibbs,  in  which 
he  says:  "Under  these  peculiar  circumstances,  I  trust  the 
collector  will  extend  to  us  the  same  privilcfjc  he  Jias  alreaJi/ 
done  with  our  ships,  when,  I  trust,  all  the  different  forms,  as 
required  by  the  United  States  Government,  will  be  duly  per- 
formed ;  and  we  feel  no  wish  to  cause  any  derangement  in  your 
official  rules  and  regulations  which  we  can  possibly  avoid." 
(Company's  Ev.,  p.  399.)  From  this  letter,  it  is  clearly  in- 
ferable that  Mr.  Gibbs  had  gone  out  to  the  very  end  of  the 
law  to  extend  "privilege"  to  the  Company. 

Tlie  truth  is,  it  was  no  easy  matter  to  satisfy  the  Company. 
They  found  it  difTicult  to  play  a  subordinate  part  in  a  country, 
where,  in  effect,  they  had  exercised  sovereign  powers. 

AVe  call  attention  to  the  fact,  as  appears  from  the  above- 
cited  letter  of  Mr.  Ogdcn,  that  the  Compnny  protested  against 
the  payment  of  duties  on  imports.  It  requires  no  argument 
to  show  that,  so  far  as  the  goods  imported  by  the  Company 
were  consumed  or  sold  in  the  country,  they  were  liable  to 
duties.  The  protest  of  tho  Company  on  this  point  exhibits 
the  extravagance  of  their  pretensions.  It  is  much  to  the  credit 
of  i\Ir.  Gibbs's  obliging  disposition  as  an  officer  that,  under 
the  circumstances,  he  was  able  to  discharge  his  duties  in  such 
an  acceptable  manner  as  to  give  the  Company  such  very  slight 
ground  of  complaint. 

The  assumption  in  tho  argument,  that  because  of  the  letter 
of  the  Secretary  of  State  of  the  United  States,  some  two  years 
afterwards,  under  date  of  April  8,  1852,  ]Mr.  Gibbs  became 
hostile  to  the  Company,  appears  to  be  entirely  gratuitous.  It 
is  true  the  Secretary  does  speak  of  "  the  collector  misappre- 
hending the  law."  JiUt  ^Nfr.  Gibbs  was  not  the  collector.  Tho 
remark  did  not  apply  to  him.     And  there  was  nothing  in  the 


100 


1 

^Ki  : 

1 

j^B    -1 

;fw 

«i 

|Hpi 

wHb  I 

'■E^^D' '' 

iVi 


"  ^; 


remark  to  excite  mortification,  even  on  tlic  part  of  the  collector, 
the  person  referred  to  by  the  Secretary  of  State.  A  collector 
may  possess  all  possible  i  .telligence  and  every  virtue,  and  yet 
misapprehend  the  law  in  a  new  case,  under  such  a  complicated 
system  as  the  custom-house  regulations  of  the  United  States. 
To  suppose,  then,  that  Mr.  Gibbs  became  hostile  to  the  Com- 
pany from  this  trivial  incident,  is  a  violent  and  unreasonable 
supposition, — a  supposition  which  would  not  hold  good  in  re- 
gard to  men  generally,  and  is  peculiarly  unjustifiable  in  rcfi.  - 
ence  to  Mr.  Gibbs,  whose  amiability  of  character,  generosity 
of  nature,  and  freedom  from  the  prejudice  of  narrow  minds, 
are  signally  and  honorably  conspicuous. 

The  next  complaint  against  Mr.  Gibbs  is,  that  he  became 
clerk  of  the  American  Commissioner  in  this  case.  The  argu- 
ment of  the  Company  seems  to  insinuate  that  iNIr.  Gibbs,  ac- 
tuated by  a  settled  hostility  to  the  Company,  obtained  the 
^situation  of  clerk,  for  the  mere  purpose  of  pursuing  the  Com- 
pany with  his  hostility.  Such  a  suggestion  as  this  would  be 
more  appropriate  in  a  sensational  romance  than  in  real  life. 
In  the  case  of  Mr.  Gibbs  it  is  entirely  out  of  place,  and  does 
more  credit  to  the  imagination  of  the  learned  counsel  who 
prepared  the  argument,  than  to  hisothjr  intellectual  faculties. 

The  naked  fact  of  the  case  in  this  connection,  stripped  of 
all  rhetorical  embellishment,  is,  that  Mr.  Gibbs,  though  one  of 
the  clerks  of  the  Commissioner,  has  taken  some  interest  in 
ascertaining  what  persons  could  give  evidence  in  the  case,  and 
what  their  evidence  was,  and  giving  this  information  to  the 
counsel  for  the  United  States. 

It  is  not  perceived,  that  there  is  anything  improper  in  this 
conduct  on  the  part  of  Mr.  Gibbs.  lie  was  clerk  to  the  Com- 
missioner on  the  part  of  the  United  States,  and  another  gentle- 
man was  clerk  to  the  Commissioner  on  the  part  of  Great  Britain. 
Each  clerk  had  an  equal  right  to  inspection  of  the  records, 
and  their  proper  verification.  There  is  no  pretence  that  Mr. 
Gibbs  has  not  discharged  all  the  business  acts  required  of  him 
as  clerk.  Upon  this  point  no  complaint  is  made.  The  objec- 
tion is  that  Mr.  Gibbs  has  gone  outside  of  his  sphere  of  ofl^i- 
cial  action,  and  aided  in  bringing  evidence  into  the  case.     Mr. 


101 


in  this 
|e  Com- 

;cntle- 
Iritain. 

;cov(ls, 
I  at  Mr. 
lot'  him 

objcG- 

•f  oin- 

Mr. 


Gibbs's  offence  is  in  aiding  to  produce  evidence.  It  is  difficult 
to  see  what  is  wrong  in  such  a  procedure. 

The  object  of  the  Cominissio  i  was  to  receive  evidence  on  the 
subject  of  the  Company's  claims.  Any  citizen  of  the  United 
States,  feeling  a  just  interest  in  his  country,  if  he  had  been 
aware  of  the  existence  of  competent  evidence  bearing  on  the 
subject-mutter  of  investigation  before  this  Commission,  would 
most  unquestionably  have  been  authorized,  without  being  sub- 
ject to  the  charge  of  ofliciousness,  to  communicate  to  the  proper 
representative  of  the  United  States  the  information  in  his 
power.  Indeed,  his  silence  on  the  subject  would  not  be  the 
full  discharge  of  his  civic  duties.  jNIr.  Gibbs,  by  becoming 
one  of  the  clerks  of  this  Commission,  did  not  cease  to  be  a  citi- 
zen of  the  Ignited  States,  and  did  not  relieve  himself  from  the 
civic  obliijations  arising'  out  of  that  relation.  He  was  as  free 
to  take  tlie  interest  he  did  in  the  case  as  any  other  citizen. 

It  is  not  pretended  that  he  produced  interested  Avitnesses  or 
false  evidence.  The  Company,  if  they  were  confident  of  the 
merit  of  their  claim,  should  desire  the  fullest  possible  investi- 
gation, and,  instead  of  complaining  of  ]Mr.  Gibbs  for  throw- 
ing light  upon  their  case,  should  rather  have  been  grateful  to 
him.  Parties  who  have  meritorious  claims  do  not  object  to 
the  fullest  consideration  of  them.  They  court  scrutiny.  It 
is  only  those  who  have  a  bad  claim,  who  fly  from  the  light 
and  avoid  investigation. 

It  must  be  remembered,  in  justice  to  Mr.  Gibbs,  that  ho 
was  peculiarly  situated  in  this  matter.  Jfe  had  lived  in  Wash- 
ington Territory  ;  he  had  had  intimate  acquaintance  with  the 
operations  of  the  Company  in  that  Territory;  he  had  seen 
many  of  tiieir  posts;  he  had  studied  the  country  as  a  man  of 
science;  he  knew  a  great  many  people  who  had  been  living  in 
Washington  Territory.  Tn  short,  he  possessed  information  in 
regard  to  the  Company,  and  in  regard  to  witnesses,  superior 
to,  perhaps,  aiiy  one  in  this  part  of  the  United  States.  Under 
these  circumstances,  what  was  Mr.  Gibbs  to  do?  The  Com- 
pany were  pressing  an  exorbitant  claim  before  the  Commission, 
which  he,  in  common  with  many  otiier  persons  of  intelligence, 
uii^'iit  well  consider  in  the  last  dcfiree  unconscionable.     If  he 


102 


& 


(lid  nothing,  ho  committed  what  he  supposed  was  an  injustice 
to  tlic  Uiiiti'd  States.  Tiio  path  of  dut}'  scenicd  to  liini  to  bo 
])hiin  It  was  to  inform  the  counsel  for  the  United  States  of 
the  names  of  such  persons  as  he  knew  were  proper  to  be  wit- 
nesses in  the  case. 

Objection  is  furtlier  made  that  Mr.  Gibbs  prepared  some  of 
of  his  own  interrotratories.  But  when  we  consider  the  fact  of 
an  intelligent  witness,  with  abundance  of  leisure,  and  counsel 
pressed  with  business  engiigcments,  we  can  readily  understand 
how  this  may,  very  properly,  be  done,  for  the  mere  purpose 
of  expediting  matters.  Every  proper  examination  of  witness- 
es, produced  by  a  party,  pi'csupposes  some  knowledge  of  the 
points  to  which  the  witness  is  to  speak,  to  bo  communicated 
to  counsel.  This  is  usually  done  by  previous  conversation 
of  the  counsel  with  the  witness,  and  n^  :,ig  the  substarico 
of  his  statement.  Where  the  witness  is  intelli<xent,  and 
compr(;hends  clearly  the  matter  on  which  he  is  to  be  ex- 
amined, there  can  be  no  objection  to  his  preparing  himself 
the  statement  of  facts  with  which  he  is  familiar.  This  prepa- 
ration may  as  well  take  the  form  of  interrogatories  as  not. 
As  a  matter  of  convenience,  to  save  time,  Mr.  Gibbs,  doubtless, 
drew  up  the  particular  interrogatories  referred  to.  If  there 
is  nothing  improper  in  the  interrogatories,  it  matters  but  little 
by  whom  they  are  prepared.  And  no  exception  is  taken  to  tho 
form  of  the  interrogatories  in  this  instance.  It  seems  to  us, 
therefore,  that  the  fact  that  they  were  prepared  by  Mr.  Gibbs 
iS  a  circumstance  of  no  importance. 

Mr.  Mactavish  states  in  his  examination,  (U.  S.  Miscella- 
neous Ev.,  p.  GO,)  that  the  counsel  for  the  Company  gave  him 
questions,  and  that  he  then  wrote  oil  his  answers,  returning 
both  questions  and  answers  to  the  counsel,  and  further  states, 
that  he  may  have  consulted  with  his  counsel  about  his  answers. 
He  further  testifies  as  follows : 


"  Int.  154.  Did  you  not,  at  some  time  after  your  answers  were 
sent  to  Judge  Day,  alter  them  in  consultation  Avitli  him,  cither 
by  leaving  out  certain  parts  of  them,  or  by  adding  to  them  ? 

"  Ans.  I  may  have  done  so,  but  I  have  no  recollection  of  it 
now."  (U.  S.  Ev.  Mis.,  p.  70.) 


108 


ijustico 

111  to  bo 

tatcs  of 

be  "wit- 

snine  of 
!  fact  of 
counsel 
crstaiid 
purpose 
witiiess- 
13  of  the 
iiiicated 
ersatiou 
ibstancc 
iiit,   and 
be   cx- 
biuiself 
s  pvepa- 
as  not. 
)ubtiess, 
f  thero 
ut  little 
n  to  the 
s  to  us, 
.  Gibbs 

iscella- 
lave  him 
[turning 
states, 
Lnswers. 


}rs  were 
1,  cither 

I  em  ? 

)n  of  it 


This  mode  of  preparing  a  witness  for  examination  would 


fr 


seem   to  estop  the  Company  irom  complaining  oi  a  witness 


)f 


more 


ly  prop 


)ariiifr  his  own  intorrotratories. 


Complaint  is  made,  in  connoctioii  with  Mr.  Gibbs,  that  the 
manuscript  evidence  has  not  been  correctly  printed.  In  refer- 
ence to  L.  Brooke's  evidence,  it  appears  that  the  words  "  as 
to"  are  printed,  though  they  do  not  exist  in  the  manuscript. 


Tl 


ns  IS  evK 


Icntly 


I  mere  error  or   tlie  printer,  and  tloes  not 


I  d( 


alter  the  sense  in  the  sli^jrhtest  decree. 

The  argument  continues:  "And,  on  the  same  page,  $1  per 
acre  is  printed,  instead  of  $100,  which  it  ought  to  be."  (Argu- 
ment for  Co.,  p.  167.)  What  shows  conclusively  that  this  was 
a  mere  error  of  the  printer,  overlooked  in  the  correction  of  tho 
proof  sheets,  is  the  fact,  that  the  statement  made  is  in  refer- 
ence to  ton  acres  of  land  purchased  by  General  Ingalls  in  Van- 
couver, which  statement  is  printed  correctly  inGeneral  Ingalls' 
evidence,  (Answer  to  Int.  20,  U.  S.  Ev.,  Pt.  2,  p.  7,)  as  follows: 

"In  1800  I  purchased  some  ten  acres  of  land  in  Vancouver, 
at  what  I  considered  the  most  eligible  site  on  the  river,  '  A' 
$1,000,  and  during  the  present  year  have  sold  it  for  tho 
same."  That  is  to  say,  the  context  indicated  the  error  of 
the  printed  price  per  acre,  and  no  misapprehension  was  occa- 
sioned by  this  error. 

Such  is  the  slender  foundation  upon  which  this  complaint 
rests.  From  this  we  may  judge  of  the  spirit  with  which  Mr. 
Gibbs  has  been  pursued  in  this  case. 

The  effort  is  evidently  to  punish  him  for  being  instrumental 
in  the  production  of  important  witnesses.  His  oifonce  is  not 
so  much,  we  imagine,  i^'  his  own  testimony,  as  in  the  testimony 
brought  into  the  case  on  his  information. 

We  regret  that  the  Company  have  thought  it  expedient  to 
Avatio  such  unrelontinij;  war  against  Mr.  Gibbs.  llis  si<ii;nal 
probity  is  too  well  known  to  require  any  further  defence  at 
our  hands.  His  gifted  intellect,  his  scholarly  attainments,  his 
devotion  to  scientific  pursuits,  his  generosity  of  character, 
command  for  him  the  respect  and  esteem  of  all  who  know  him.* 

*Iu  the  >>upiilL'uifUt  and  Ajijieudix  I'ur  tho  UniieJ  tJlales,  it  will  bu  shown 
under  what  cirouuistancod  and  nnpul^es  of  duty  he  acted,  so  as  eompletely  to 
vindicate  him  from  all  iuiputatiou  in  the  premises. 


104 


V.  Motion  of  the  Comjmni/  hi  amendment  of  ita  Memorial. 


Riiicc  the  filln;;  of  the  inoiiioriiil,  the  Compiiiiy  liavc  moved 
to  amoinl,  so  as  to  increase  tiieauiount  claimed  by  them  in  the 
sum  of.S4r)9,900. 

The  original  amount  claimed  in  the  memorial  is  !?3,8:i2,0o() 
67.  The  total  amount  now  claimed  under  the  amendment  is, 
$4,281,030.  Of  this  increased  amount  of  ,^4.")'.), 000,  the  sum 
of  8418, GOO  (!)G  is  set  down  for  the  land  at  Vancouver. 

The  reason  of  the  proposed  increase  is  stated  in  the  motion 
to  amend  to  be,  "because  it  appears  by  the  evidence  of  re- 
cord, that  the  lands  claimed  by  the  Hudson's  Bay  Company 
at  each  of  the  posts  of  A^ancouver  ;).nd  Colvile,  greatly  ex- 
ceed in  value  the  respective  amounts  stated  and  claimed  for 
them  in  the  memorial."  (Argumei.t  for  Company,  p.  1.").) 

The  motion  comes  in  long  after  the  close  of  the  evidence 
on  both  sides.  We  deny  the  right  of  the  Company  to  file 
such  a  motion  at  such  a  time.  We  protest  against  it  as  too 
late.  AVe  insist  that,  if  received,  it  shall  be  regarded  as  re- 
opening the  whole  case  for  additional  evidence.  The  United 
States  can  and  will,  \i permitted,  produce  much  and  conclusive 
additional  evidence  to  the  falsity  of  the  new  claims  of  the 
Company. 

It  is  generally  presumed  that  a  party  states  his  own  claim 
with  sullicient  liberality.  At  any  rate,  such  is  the  ordinary 
experience  in  business  transactions.  The  bias  of  interest  is 
generally  sufficiently  operative  to  insure  this  result. 

Where,  therefore,  a  party,  after  ample  time,  as  in  this  case, 
and  elaborate  preparation,  fixes  his  own  claim,  a  subsequent 
departure  from  his  own  estimate  is  calculated  at  least  to 
awaken  surprise;  ordinarily  it  would  tend  to  excite  a  certain 
degree  of  prejudice  against  the  claim,  as  being  vague  and 
speculative.  In  the  case  of  the  Company,  where,  by  their 
elaborate  system  of  accounts,  and  the  able  officials  employed 
by  them,  the  greatest  possible  precision  and  accuracy  in  all 
business  transactions  may  readily  be  arrived  at,  it  seems  the 
more  inexcusable  that,  in  the  progress  of  the  case,  there  should 


lO.-) 


\orial. 

mo  veil 
ii  in  the 

mcnt  is, 
;he  sum 

!  motion 
e  of  ro- 
ompany 
atly  ex- 
itncd  for 
1.3.) 

2viilonco 
'  to  file 
it  as  too 
0(1  as  re- 
united 
nclusive 
of  the 

n  claim 
rdinary 
crest  is 

kis  case, 

[sequent 

least  to 

certain 

Hue  and 

|y  their 

iployed 

in  all 

mis  the 

should 


be  a  necessity  of  opening  the  amount  of  the  claim  and  lar^^ely 


incrcdsniu  it. 


Th 


if: 


iblc 


th 


duccd 


d., 


lie  uiitavoraoie  impression  tlius  i)ro(lucca  is  aeei)ene(ij 
when  we  consider  that  this  ])roposed  increase  is  almost  entirely 
sot  down  to  a  single  item, — the  land  at  one  post,  Vancouver. 
The  pro[)osed  increase  in  this  one  item  is  ^41.3,000  GO.  If 
the  proposed  increase  had  been  spread  over  numerous  items 
of  the  claim,  it  would  not  have  been  so  striking.  But  it  is 
applied  in  chief  to  the  single  item  of  land  at  Vancouver.  One 
would  have  supposed  that  the  value  of  the  land  at  Vancouver 
might  have  been  approximated  in  the  j)reparatory  estimate 
nearer  than  .^41.3,G(jG  00.  It  appears  from  Mr.  Mactavish's 
evidence  that  he  proposed  a  higher  valuation  on  Vancouver 
than  was  placed  on  it  in  the  memorial.  But  this  higlior  esti- 
mate was  rejected  on  doubtless  the  most  mature  consideration. 
The  subsequent  motion  to  amend,  therefore,  from  considera- 
tion of  this  fact,  creates  the  more  astonishment  and  suspicion. 

The  increased  estimate  is  brought  about  by  the  fact  that 
the  Company's  witnesses  value  the  lands  at  Vancouver  and 
Colvile  at  a  far  higher  rate  than  the  Company  did. 

The  natural  effect  of  the  witnesses  assigning  a  far  higher 
value  on  lands  at  Vancouver  and  Colvile  than  the  Company 
did,  is,  that  such  higher  valuation  excites  suspicion  as  to  the 
value  of  the  evidence.  It  gives  the  impression  that  the  wit- 
nesses are  extravagant  in  their  estimates.  In  short,  it  im- 
pairs our  confidence  in  the  reliability  of  the  witnesses. 

Either  the  original  estimate  of  the  Company  or  the  subse- 
quent estimate  of  the  witnesses  is  erroneous.  lioth  cannot  bo 
correct.  And  the  difference  is  so  large,  $413,000  00,  in  regard 
to  the  one  item  of  land  at  a  single  post,  that  this  error  can- 
not be  considered  as  immaterial.  It  is  too  great  and  important 
an  error  to  be  so  treated.  The  error  is  vital.  It  reflects  on 
the  Company, — on  the  witnesses.  We  might  well  think  the 
Company  are  nearer  the  truth  than  the  witnesses,  because 
the  ordinary  principles  operative  on  human  nature  arc  almost 
certain  to  cause  a  party  to  value  his  claim  high  enough  ;  and 
we  must  therefore  suppose  that  the  Company  did  sq  in  this 

case. 

14 


lOfi 


•  'in 


:m 

\ 

%■■., 

t 

^■if 

<i ' , 

1 

>•  m' 

A'.-  > 

i'v 

it 

']    . 

i- 

Si'*f  ■' 

f 
f~   ' 

^fi?1 

|i 

j^^ll 

■' 

nniiw 

i-i 

^pB 

H 

This  extraordinary  spectacle  of  the  witnesses  in  a  case  going 
beyond  the  principal  in  fixing  the  amount  of  the  recovery, 
fives  great  force  to  tlic  objections  to  the  principal  evidence  for 
Jie  Company,  as  coming  from  interested  witnesses, — olficers 
and  employes  of  the  Company.  And  we  arc  forcibly  admon- 
ished of  the  necessity  of  scrutinizing  the  evidence  on  behalf 
of  the  Company  with  the  most  suspicious  caution. 

VI.    The  Compaiv/s  oivn  estimation  of  its  value. 

The  Companies  have  themselves,  at  various  times,  ra^  i  and 
fixed  the  value  of  their  various  claims,  at  a  sum,  wnich  re- 
flects most  disparagingly  on  their  present  pretensions. 

Thus,  in  1860,  they  offered,  through  their  Government,  to 
accept  $500,000  in  full  satisfaction  of  all  their  claims,  in- 
cluding the  navigation  of  the  Columbia  river. 

But  this  offer  is  not  the  only  occasion  in  which  the  Compa- 
nies have  exhibited  their  own  estimate  of  the  value  of  their 
claims.  They  have  done  it  at  other  times,  and  in  other  forms, 
in  memorable  contrast  Avith  the  attitude  in  which  they  now 
stand. 

Thus,  in  1852,  Sir  George  Simpson,  speaking  for  the  Com- 
panies, offers  to  dispose  of  all  their  rights  for  $1,000,000, 
although  he  pretends  that  this  is  less  than  half  their  value. 
He  does  not  profess  that  it  is  less  than  onc-Jifth  of  their  value. 
(U.  S.  Misc.  Ev.,  p.  280.) 

Lord  Lyons  to  Gen.  Cass,  December  10th,  1860,  United 
States  Evidence,  Mi?nellaneous,  p.  284. 

In  this  despatch.  Lord  Lyons  says: 

"I  am  accordingly  instructed  to  state  to  you,  sir,  that,  if 
the  United  States  Government  will  agree  to  pay  to  the  Hud- 
son's Bay  andPuget's  Sound  Companies  a  sum  of  five  hundred 
thousand  dollars,  ($500,000,)  in  extinction  of  all  their  claims 
against  the  United  States,  under  the  treaty  of  June  15, 1846, 
her  majesty's  Government  will  be  prepared  to  accept  that 
amount  in  behalf  of  the  two  Companies,  and  to  release  the 
United  States  Government  from  all  further  liability,  so  far  as 
regards  their  engagements  to  Great  Britain,  under  the  third 
and  fourth  articles  of  that  treaty,  in  behalf  of  the  Hudson's 


107 


3  going 
jovcry, 
nco  for 
oiricers 
idinon- 
behalf 


^  i  and 
lich  re- 
lent, to 
ms,  in- 

Compa- 
3f  their 
[•  forms, 
ley  now 

le  Com- 
00,000, 
value. 
r  value. 

United 


[that,  if 

e  Ilud- 

lundred 

claims 

1846, 

)t  that 

ise  the 

far  as 

third 

idsoa's 


Bay  and  Pugot's  Sound  Companies  in  Oregon,  whether  on  ac- 
count of  land  and  buildings,  or  on  account  of  privileges  men 
tionod  in  the  aforesaid  articles." 

It  will  be  noted  that  this  proposition  comes  direct  from  the 

British  Government   to  the  Government  of  the  United  States. 

It  shows  the  estimate  the  British  Government  placed  on  the 


;li 


th( 


claims  of  the  Companies.  While  it  is  conclusive  upon  ine 
British  Government,  the  party  to  the  treaty  of  184G,  it  is  also 
conclusive  upon  the  Companies;  because  the  Companies,  hav- 
ing placed  their  claims  in  the  care  of  the  British  Government, 
were  bound  by  the  action  of  such  Government.  Besides,  it  is 
not  to  be  supposed  that  the  British  Government  would  have 
volunteered  an  estimate  of  the  Companies  claims,  the  Govern- 
ment must  necessarily  have  received  this  estimate  from  the 
Com  panics. 

We  submit,  that  this  proposition  of  the  British  Government, 
to  receive  $500,000  in  full  satisfaction  of  all  the  claims  of 
both  Companies,  is  conclusive  upon  the  Companies,  and  is  a 
moral  estoppel  against  their  claiming  a  larger  sum  now 
The  companies  may  recover  less  than  $500,000;  but,  by  theii 
own  action,  they  are  precluded  from  claiming  more. 

This  action  on  the  part  of  the  Companies,  as  we  conceive 
is  entitled  to  a  great  deal  more  significance,  as  being  a  clainr. 
against  a  great  Government,  than  in  the  case  of  an  individua 
proposing  to  settle  his  claim  against  another  individual.  An 
individual  may  offer  to  take  less  than  he  thinks  he  is  entitled 
to,  because  ho  may  be  distrustful  of  the  integrity  or  ability 
of  his  debtor.  But  no  such  motive  could  exist  in  this  case. 
The  integrity  of  the  United  States,  as  also  its  ability  to  pay, 
was  above  all  exception.  Nothing,  therefore,  can  be  im- 
agined more  improbable  than  that  a  company  so  sagaciously 
managed  as  this  Company  is,  having  a  valid  claim  against  r 
party  so  eminently  responsible  as  the  Government  of  the 
United  States,  would  voluntarily  abate  its  claim  of  $4,281,036, 
and  that  of  its  excrescence,  the  Puget's  Sound  Company,  for 
$1,168,000  00,  and  propose  to  receive  .-$500,000  in  full  satis- 
faction of  both  claims,  unless  it  well  knew  that  the  lessei 


II 


108 

sum  it  propose!  to  receive  is  all  to  which  it  was  justly 
ertitlc(L 

The  eminent  counsel  for  the  Company  sees  the  immense 
moral  efFect  of  this  transaction,  and  he  puts  forth  all  his 
ability  in  advance  to  break  its  force.  It  is  unnecessary  to 
follow  him  in  his  iufjenious  ar^uraent.  There  stands  the 
great  fact:  the  seal  cannot  be  rubbed  off  the  bond.  That 
fact  speaks  a  language  so  potential,  that  we  leave  it  to  certify 
for  itself;  satisfied  that  no  force  of  professional  intellect  can 
fritter  away  its  strength. 

In  showing  that  the  British  Government  in  1860  deemed 
the  aggregate  claim  of  the  two  Companies  as  of  the  value  of 
only  $500,000,  we  present  but  a  very  small  part  of  the  facts 
bearing  on  this  most  important  and  vital  question.  We  pro- 
ceed to  show  that  in  the  offer  of  $500,000,  made  in  the  year 
1860,  the  British  Government  acted  advisedly,  and  did  ample 
justice  to  the  real  claims  of  the  two  Companies. 

The  question  of  the  rights  of  the  Companies  had  just  under- 
gone thorough  examination,  on  the  part  both  of  the  Govern- 
ment and  of  Parliament.  In  the  sequel  we  shall  show  what 
and  how  much  cause  there  was  for  this  investifjation. 

In  the  course  of  that  investigation,  the  committee  of  the 
House  of  Commons  called  on  the  Hudson's  Bay  Company  for 
an  exhibit  of  its  financial  condition. 

The  Company  responded  with  a  statement,  which  we  abridge 

as  follows : 

e         s.  a. 

Stork  in  the  name  of  proprietors 500,000 

iianda  and  buildings,   exclusive   of    Vancouver's   Island    and 

Oregon .^ 31S,SSl  12  S 

Advanced  for  various  ohjects  at  Vancouver's  Island 87,071     y  3 

Amount  invested  in  Victoria  and  otiier  posts  on  Vi^ncouvcr'a 

Island 7.'3,000 

Paid  the  Earl  of  j^elkirk Sl,lll   18  5 

"  I'rojierty  and  investments"  in  Oregon,  secured  to  the  Com- 
pany as  "  possessory  ri^lils  "  bytr^,  ty  with  the  United  States, 
say,  >;i,000,000 200,0(t0 

Total  capital £1,265,007  19  4 

Pari.  Rep.  on  Hudson's  B.  Co.,  p.  449,  Ap.  No.  18. 

We  perceive,  in  this  exhibit,  the  commencement  of  dccop- 
tion  on  the  part  of  the  Company. 


109 


s.  a. 


,1  18  5 


)0 

Ft  10  i 
IS. 

lU' cop- 


Ill  tlie  first  place,  they  put  down  the  ■whole  capital  at  the 
loAv  sum  of  about  a  million  and  a  quarter  pounds,  which,  as 
wo  shall  presently  see,  is  an  under-estimatc  of  the  miscellan- 
eous assets  which  the  Company  really  possessed,  indepondcnt 
of  its  territorial  ri<^hts  within  its  chartered  limits  on  Jjallin's 
Bay. 

Secondly,  in  this  exhibit  the  Company  cxagf^erates  its  claim 
against  the  Uniteil  (States,  stating  it  at  $1,000,000,  which  claim 
at  a  time  rtmch  nearer  to  its  inception,  and  when  the  structures 
of  the  Company  were  in  a  better  condition,  the  Company, 
through  its  governor.  Sir  John  Pelly,  estimated  at  only 
8700,000.  (U.  S.  Misc.,  p.  240.) 

We  perfectly  understand  how,  in  this  exhibit,  the  sum  of 
$1,000,000  is  stated  as  the  amount  of  the  claim  against  the 
United  States;  for  that  is  the  sum  to  which  the  claim  was 
forced  up  by  Sir  George  Simpson,  when  he  appeared  at  Wash- 
ington, December  o,  1852,  and  put  this  matter  into  the  clauii 
market,  taking  care,  of  course,  to  demand  such  amount  as 
should  leave  ample  room  for  abatement  by  the  Government, 
and,  even  after  that,  have  a  spacious  margin  left  for  the  benefit 
of  Mr.  George  M.  Saunders  and  his  associates,  wlio  were,  it 
appears,  engaged  to  state  this  claim  in  the  State  Department 
and  before  Congress.  Compare  the  confidential  letter  of  Sir 
George  Simpson  to  Mr.  George  M.  Saunders,  and  the  "memo- 
randum of  the,  >«ame  person  with  reference  to  the  Hudson's 
Bay  Company  iiid  Puget's  Sound  Company's  possessory  rights 
in  Oregon."     U.  S.  Misc.  Ev.,  pp.  241,  250.- 

Sir  George  Simpson  means  to  wear  the  appearance  of  exact- 
ness ;  for  he  files  a  bill  of  particulars.  We  pray  the  Commis- 
sioners to  scrutinize  this  bill  of  particulars,  and  compare  it 
with  Mk-  present  estimate  of  the  Company. 

And  yet  it  is  manifest  that  tiie  estimates  there  presented 
were  intended  only  as  a  i^how,  in  the  expectation  of  some 
smaller  sum  being  offered  in  return  by  the  United  States. 

We  now  propose  to  call  attention  to  certain  circumstances, 
which  took  place  when,  in  July,  18(3'j,  the  whole  interests  of  the 
Hudson's  Bay  Company  wore  transferred  to  Mr.  Edward  W. 
Watkin,   and   cr  tain    gentlemen    acting   with    him,   and    Srir 


110 


I 

I 


('•M 


I 


^I 


■   >  •-■■[  ■        J 


'  *.■:'''  ■' 


Edmund  Head  was  elected  Governor  of  the  Company.  (U.  S. 
Mis.  Ev.,  p.  336.) 

The  stock  of  the  Company  previous  to  this  transfer  was 
nominally  iJ500,000,  but  it  rated  on  the  London  stock  ex- 
chantT-e  at  double  that  sum.  The  market  value  of  the  Com- 
pany  was  therefore  <£1. 000,000.  The  new  society  paid 
XI, 500,000  for  the  transfer  to  them  of  the  entire  interests  of 
the  Company. 

The  parties  to  whom  the  transfer  was  made  seem  to  have 
organized  themselves  under  the  name  of  "  The  International 
Financial  Society,"  and  thus,  by  a  sort  of  transmigration  of 
soul,  or  metempsychosis,  the  IludsoJi's  Bay  Company  shuffles 
off  its  mortal  coil,  and  reappears  as  "  The  International  Fi  .a,i- 
cial  Society."     S'fat  nominis  umbra. 

The  prospectus  issued  on  behalf  of  tiie  "  Financial  Com- 
pany," to  induce  subscriptions  to  the  new  issue  of  stock  which 
followed  upon  this,  states  the  resources  of  the  Company  as 
follows: 

1.  The  assets  (exclusive  of  Nos.  2  and  3)  of  the  Hudson's 
Bay  Company,  recently  and  specially  valued  by  competent 
valuers  at  .4^1. 023,560. 

2.  The  landed  territory  of  the  Company,  held  under  their 
charter,  and  which  extends  over  an  estimated  area  of  more 
than  1,400,000  square  miles,  or  upwards  of  806,000,000  acres. 

3.  A  cash  balance  of  £370,000.  (U.  S.  Ev.  Mis.,  p.  21.) 
Mr.  Armit,  registrar  of  shares  in  the  Hudson's  Bay  Com- 
pany, says:  "I  do  not  know  what  assets  were  included  in  tlie 
paragraph  numbered  one  of  the  prospectus."  Such  paragraph 
was  supposed  to  include  all  the  property  of  the  Company,  ex- 
cept as  therein  excepted.     {lb.,  p.  18.) 

Further,  Mr.  Armit  says:  "I  do  not  know  how  the  sum 
mentioned  in  paragraph  one  was  arrived  at,  nor  any  of  the 
details  of  which  it  was  composed.     (lb.) 

It  seems  strange  that  Mr.  Armit,  occupying  the  official 
position  he  does  in  the  Company,  should  be  so  ignorant  as  he 
seems  to  bo  on  a  matter  of  so  much  importance,  and  about 
which  the  information  should  bo  so  clear.  The  Coip.pany, 
proposing  to  issue  s'.ock  upon  a  valuation  of  £:i,000,OQ'?,  issues 


Ill 


jr  their 
more 
acres. 
21.) 
Coin- 
in  the 
graph 
ly,  ex- 

le   sum 
lof  the 

lofRcial 

as  he 

about 

Ipany, 

■ssues 


its  prospectus,  stating  its  assets,  ^A'ith  certain  namctl  excep- 
tions, to  be  <£1,023,56!),  and  yet  one  of  its  chief  clerks,  whose 
duties  would  seem  peculiarly  to  authorize  such  information, 
is  wholly  ignorant  upon  the  subject. 

The  Company,  being  aware  that  such  information  was 
sought  for  by  the  United  States,  were  bound  to  have  produced 
a  witness  who  could  give  this  information. 

The  fact  that  Mr.  Armit,  tlie  witness  tendered  to  the  United 
States,  could  not  give  this  information,  and  that  the  Company 
failed  otherwise  to  furnish  it,  furnishes,  we  conceive,  just  sub- 
ject for  comment,  and  authorizes  conclusions  unfavorable  to 
them. 

It  was  certainly  a  matter  of  great  importance  to  the  United 
States  to  ascertain  the  items  included  under  the  head  of  No.  1, 
in  the  prospectus,  which  went  to  make  up  the  sum  of  XI, 023,- 
509,  because,  in  this  way  they  could  asce.'tain  the  estimate 
placed  by  the  Company,  as  late  as  July,  18G3,  on  their  claim 
against  the  United  States.  The  United  States  called  for  such 
information  from  the  Company,  and  the  witness  offered  by  the 
Company  is  unable  to  give  this  information.  If  this  informa- 
tion could  have  been  advantageous  to  the  Company,  wc  have 
every  reason  to  presume  it  would  have  been  furnished.  Its 
not  being  furnished  is  a  circumstance  against  the  Company. 
Practically,  it  is  the  suppression  of  information  whicii  it  was 
the  duty  of  the  Company  to  furnish,  when  demandeil  of  them. 
This  action  on  the  pnrt  of  the  Company  necessarily  justifies 
all  inference  unfavorable  to  it. 

But  we  are  not  left  either  to  speculation  or  to  inferences 
founded  on  the  reticence  of  the  Company  for  means  of  conclu- 
sion respecting  the  elements  of  the  calculation  of  values, 
wliich  constituted  the  basis  of  the  transfer  of  the  property,  as 
well  of  the  Puget'S  Sound  Company  as  of  the  Hudson's  Bay 
Company,  to  the  International  Financial  Company.  Wo 
find  this  clearly  explained  in  the  Report  of  the  Delegates  of 
the  Canadian  Government,  (July  12,  18G5,)  as  follows;  "It 
is  but  two  years  since  the  present  Hudson's  Bay  Company 
purchased  the  entire  property  of  the  old  Company  ;  they  paid 
£1,500,000  for  the  entire  property  and  assets,  in  which  were 


1 


112 

included  a  large  sum  of  cash  on  hand,  large  landed  properties 
in  British  Columbia  and  elsewhere,  not  included  in  our  ar- 
ran<'cment,  a  very  lar<i;o  claim  a;!;ainst  the  United  States 
Government  under  the  Orei^un  treaty,  and  ships,  goods, 
pelts,  and  business  premises  in  England  and  Canada,  valued 
at  i;l,023.o(t9.  The  value  of  the  territorial  rights  of  the 
Company,  therefore,  in  the  estimation  of  the  Company  itself, 
will  be  easily  arrived  at."     (U.  S.  Mis.  Ev.,  p.  350.) 

Now,  let  us  analyze  this  sta<-'^ment,  presenting  its  contents, 
in  the  first  place,  in  a  sched'.ie,  as  follows: 

llemcmber,  the  sum  total  paid  for  the  entire  property  and 
assets  purp  -'P  to  be  .£1,500,000. 

To  make  u^  mrt  this  grand  total,  we  liave  the  enumera- 
tion of  various  icv;ms,  specific  sums  for  which  are  not  carried 
out,  but  the  sum  total  of  which  is  .£1,023,509. 

Then  we  may  state  the  following  account,  according  to  the 
report  of  the  delegates: 

1.  A  large  sum  of  cash  in  liand £       s.       d. 

2.  Largo  latiJud  i)rojiorties  in  British  Coliunbia,  ami  elaewheru. 
M.  Slii[is  

4.  (foods  

5.  Tells  

(i.   Busiuess-preniise.s  iri  J'liiglaml 

7.  ]>iisiiiess-]ireuiises  in  Catiaila 

8.  Claua  against  the  United  Slates  Governuuait 

Total  .':  1/1  J."., ;•)(;'.) 

Add  value  of  the  territorial  rights  of  the  Company •Kivlol 

Giand  total .C  1, ')()(), UOO 

We  entreat  the  careful  attention  of  the  Commissioners  to 
all  and  each  of  the  items  of  this  exhibit,  and  the  several  sums 
not  specified,  as  well  as  the  suras  specified. 

The  territorial  rights  of  the  Company  include  the  vast  do- 
main granted  by  the  charter  of  Charles  II;  in  that  immense 
territory,  stretching  from  Canada  north  indefinitely  toward 
the  pole,  and  from  the  Atlantic  ocean  westward,  into  beyond 
the  centre  of  the  continent  of  America.  .Here  the  Company 
is  not  troubled  by  the  vagueness  of  possessory  rights  only; 
and  it  does  not  need  to  tortue  the  vernacular  idiom,  or  to 
falsify  all  the  principles  of  jurisprudence,  or  to  corrupt  its 


porties 
our  ar- 
Stutes 
goods, 
valued 
of  the 
'  itself, 

utents, 

I'ty  and 

lumera- 
carried 

r  to  the 


(i:i:5,r)(ii.» 


,ri(l(),UOO 

Mcrs  to 
il  sums 

ast  do- 
menso 
toward 
)eyond 
Impany 

only; 

or   to 
ipt  its 


113 

own  conscience,  in  the  vain  endeavor  to  transform  and  magiiif}' 
possessory  rights  into  fee  simple,  as  it  does  in  Oregon  and 
Washington:  all  such  violation  of  right  and  of  truth  is  super- 
fluous within  its  chartered  limits,  resting  on  IJaflin's  bay:  there 
it  has  a  fee  simple  by  the  express  grant  of  the  Crown. 

Nor,  within  those  limits,  does  the  Company  need  to  exhaust 
itself  in  the  vain  effort  to  establish  possessory  rights  in  run- 
ning water,  or  respirable  air,  or  in  vivifying  sun-light;  for 
all  these,  in  that  region,  the  Company  deals  with  as  chartered 
pro  "(rietor  of  the  soil  and  lord  of  the  territory. 

Moreover,  in  that  vast  region,  the  Company  has  trading- 
posts  and  structures  of  residence  or  business  of  far  more  im- 
portance than  its  ruined  and  abandoned  posts  in  Oregon  and 
Washington,  whether  the  mud-hovels  of  Fort  Hall,  or  Fort 
Boiso,  or  the  more  'pretentious  edifices  of  Fort  Vancouver. 

We  suppose,  also,  that  as  the  Company  owns  the  land  of 
its  chartered  territory,  it  also  owns  the  portages,  and  has  no 
occasion  to   fabricate   there  any  hojjus  claims  in   this  respect. 

We  suppose,  furthermore,  that  in  that  territory  the  Com- 
pany does  not  need  to  fly  in  tiie  face  of  common  sense,  by  un. 
dertaking  to  set  up  fee  simple  title  to  any  of  the  waste  pas- 
tures where  its  horses  or  cattle  may  have  happened  to  crop 
a  blade  of  grass  while  wandering  in  the  wilderness,  or  where- 
soever any  servant  of  the  Company  may  have  happened  to 
fell  a  tree  or  cut  a  twig  in  the  forest:  the  Company  is  driven 
to  such  ridiculous  expedients  and  pretences  for  the  foundation 
of  fee  simple  title  only  when  prosecuting  claims  against  the 
United  States  in  Oregon  or  Washington. 

And  jct,mirabih'.  dictu  !  whilst  the  Company,  on  a  regular 
and  well-considered  contract  of  sale,  values  the  sum  total  of 
its  proprietorship,  of  whatever  nature  had  [)laced  in  that 
vast  territory,  of  earth,  water,  sky,  air, — and  all  of  natural 
objects  it  contains,  as  aboriginal  man,  beast,  bird,  fish,  in- 
sect, and  forest, — and  whatsoever  of  costly  improvements  tlie 
Company  has,  in  the  course  of  more  than  two  hundred  years, 
introduced  there;  and  whatsoever  rights  of  navigation  or  trade 
its  charter,  or  its  misconstruction  of  its  charter,  may  prompt 

it  to  assert: — all  these  vast  proprietary  interests  the  Company 
15 


114 


deliberately,  and  on  full  consideration,  in  the  year  1863, 
valued  and  sold  for  the  sum  of  ,£476,431;  whilst  now,  it  has 
the  superlative  shamelcssncss  and  assurance  to  claim  of  the 
United  States  the  sum  of  =£1,119,850,  on  account  of  scattered 
possessions  remaining  to  it  in  Oregon  and  Washington,  of 
not  one  hundredth,  no,  not  one-thousandtL,  ,-  :.  n-  ,aiue  of 
its  proprietary  rights  in  the  chartered  territory  of  the  Com- 
pany. 

Look  we  now  for  a  moment  into  the  blanks  of  the  balance 
of  the  price  for  which  the  Company  sold  itself  to  the  Finan- 
cial Society. 

Into  their  balance  enters  not  merely  a  sum  of  cash  in  hand, 
but  a  large  sum.  We  know  how  much  that  sum  is,  for  which 
reason  we  might  fill  up  the  amount  in  the  exhibit,  it  being 
stated  (.£370,000)  in  the  Prospectus  of  the  Financial     ociety. 

There  is  some  question,  it  is  true,  whether  this  cash  balance 
is  a  part  of,  or  in  addition  to,  the  <£1, 023,509,  it  being  stated 
one  way  at  p.  350  and  another  at  p.  28.  But,  as  we  shall  find 
in  the  sequel,  the  value  of  the  other  items  is  so  great,  that  it 
is  quite  immaterial  whether  the  particular  sum  be  included  in 
or  excluded  from  the  general  amount.  If  excluded  there,  it 
distinguises  th^^  amount  to  be  credited  for  the  territorial  rights 
of  the  Company. 

Enter,  also,  not  simply  landed  properties  in  British  Colum- 
bia, but  landed  properties  elsewhere  also  ;  where,  is  not  stated, 
but  certainly  not  in  England,  nor  in  Canada,  nor  in  the 
United  States;  and  these  are  large  landed  properties. 

Then  we  have  ships,  who  knows  how  many?  We  readily 
conceive  that  neither  Mr.  Roberts,  the  accountant  of  the  Hud- 
son's Bay  Company,  nor  Mr.  Armit,  the  registrar  and  the  ac- 
countant of  the  Puget's  Sound  Company,  can  afi"ord  to  give 
us  any  knowledge  on  this  subject;  for  we  have  already  seen 
that  the  factors,  agents,  and  clerks  of  the  Company,  expatiat- 
ing at  will  in  the  boundless  expanse  of  their  occidental  empire, 
expend  as  much  money  as  they  please,  consume  as  many  goods 
as  they  please,  build  and  sail  as  many  ships  as  they  please, 
while  transmitting  as  little  money  as  they  please,  and  sub- 
jecting themselves  to  as  little  accountability  as  they  please,  to 


1863, 
it  has 
of  the 
ittercd 
ton,  of 
iiue  of 
3  Com- 

lalance 
Finan- 

i  hand, 
;  which 
t  being 
ociety. 
balance 
;  stated 
lall  find 
,  that  it 
uded  in 
here,  it 
I  rights 

Colum- 
stated, 
in   the 

'eadily 
le  Hud- 
the  ac- 
Ito  give 
ly  seen 
ipatiat- 
^mpire, 

jioods 

Iplease, 

id  sub- 

ase,  to 


115 

their  nominal  superiors  of  the  Hudson's  Bay  House  at  London. 

But  that  these  ma^-iiificent  sitirnors  and  liiiih-mifihtincsses 
did  have  sliips,  and  those  of  the  best,  in  ample  number,  we 
may  not  doubt. 

Then  wo  have  "goods"  and  ''pelts,"  as  distinguished  from 
"goods." 

Pelts  constitute  the  production  and  result  of  the  business  of 
the  Company,  being  the  natural  crops,  as  it  were,  of  the  im- 
mense territory  between  the  Atlantic  and  Pacific  seas  on  the 
east  and  west,  and  between  the  inhabited  country  of  the 
Canadas  and  tiie  United  States  on  the  south,  and  on  the 
north  the  Arctic  sea.  For  wo  know  that  all  created  animals 
in  that  region  are  born  and  live  for  the  sole  purpose  of  being 
killed  by  the  Indians  for  the  benefit  of  the  Company,  and 
that  all  the  Indians  therein  are  born  and  live  for  the  sole 
purpose  of  promoting  the  gain  of  the  Company.  We  imagine, 
therefore,  though  we  do  not  know  exactly,  the  large  sum  re- 
quiring to  be  entered  in  the  blank  left  for  this  item  of  the 
assets  of  the  Company. 

Next,  we  have  "goods,"  which  word  it  is  obvious,  from  the 
context,  is  intended  to  designate  all  merchandise  belonging  to 
the  Company  other  than  pelts,  whether  the  same  be  in  Eng- 
land, in  British  America,  in  the  United  States,  or  passing  to 
and  fro  on  the  ocean ;  cargoes  of  the  ships  appertaining  to 
the  Company,  and  engaged  in  its  wide-spread  commerce. 
For  this  merchandise,  then  and  there,  large  sums  must  be 
enters  1  in  the  appropriate  blank  of  the  exhibit. 

Finally,  we  have  the  business-premises  of  the  Company  in 
England  and  in  Canada;  of  these,  no  specific  valuation  is 
vouchsafed  to  us.  But  we  can  well  imagine  that  the  business- 
premises  of  such  a  Company  must  be  of  great  value,  in  Canada 
as  well  as  in  England. 

As  to  England,  the  establishment,  denominated  in  the  evi- 
dence the  Hudson's  Bay  House,  has  a  name  which  speaks  for 
itself  as  magnitude  and  value,  and  for  this  item,  then,  another 
large  sum  is  to  be  entered  in  the  proper  blank  of  the 
exhibit. 

We  now  appeal  to  the  wisdom  and  common  sense  of  the 


116 


.liP 


Commissioners  to  say,  after  all  the  above  items  shall  have 
been  carried  out  in  the  exhibit,  how  much,  or  how  little  rather, 
can  be  left  as  the  true  appraisement  of  the  claims  of  the  Com- 
pany against  the  United  States? 

We  respectfully  submit,  that  by  no  possibility  can  that  ap- 
praisement exceed  the  estimate  of  $700,000  made  by  Sir  John 
Pelly,  or  the  sum  of  $500,000  demanded  by  Lord  Lyons,  or, 
as  a  barely  possible  maximum,  the  sum  of  $1,000,000  claimed 
by  Sir  George  Simpson. 

Here  wo  ask  attention  to  that  most  instructive,  complete, 
and  exhaustive  estimate  and  exhibit  of  the  riglits  of  the  Com-^ 
pany,  communicated  to  the  Department  of  State  by  Governor 
Stevens. 

See  U.  S.  Misc.  Ev.,  pp.  209-226. 

His  appraisement  of  §300,000  would  suffice,  relatively  to 
the  other  items  of  the  exhibit,  to  fill  up  the  blank  for  the 
claims  against  the  United  States,  as  mutually  appraised  by 
the  Hudson's  Bay  Company  and  by  the  International  Finan- 
cial Company,  in  their  contract  of  purchase  and  sale. 

We  defy  the  learned  and  able  counsel  of  the  two  Companies 
to  argue  away  these  facts.  No  conceivable  ingenuity  of  coun- 
sel can  serve  to  shake  their  strength. 

Remember,  that  this  appraisement  was  made  by  "  competent 
valuers,"  mutually  agreed,  of  course,  between  the  Hudson's 
Bay  Company  and  the  Financial  Society. 
U.  S.  Misc.  Ev.,  p.  21. 

Note,  also,  that  the  price  paid  by  the  Financial  Society 
for  the  entire  stock  of  the  Hudson's  Bay  Company  was  but 
£1,500,000:  more  than  two-thirds  of  which  would  be  paid  by 
the  United  States,  if  the  plans  of  these  American  speculators 
against  their  own  Government  succeed,  leaving  the  speculators 
in  the  condition  of  paying  about  X850,000  for  the  entire  com- 
mercial and  miscellaneous  property  and  territorial  rights  of 
the  Company  ! ! 

The  Company  seem  to  have  a  chronic  habit  of  setting  up 
extravagant  claims  against  Government.  It  appears  from  Mr. 
Brown's  report,  [Ib.y  p.  346,)  that  the  Company  demanded  of 


117 


,11  have 
rather, 
10  Corn- 
that  ap- 
iir  John 
ons,  or, 
claimed 

implcte, 
lie  Com-, 
overnor 


ively  to 

for  the 

,ised  by 

[  Finan- 

1  panics 
coun- 

[ipetent 
ludson's 


society 
us  but 
)aid  by 
\ulators 
lulators 
•e  com- 
;hts  of 

ling  up 
]m  Mr. 
Ided  of 


their  own  Government  €1,000,000  for  relinquishing  their  pro- 
prietary pretension  in  the  country  lying  northwest  of  Canada, 
which  country  tlie  Canadian  authorities  deny  ever  rightfully 
belonged  to  the  Hudson's  Bay  Company,  because  at  the  date 
of  their  charter  it  was  a  part  of  the  French  possessions  in 
America. 

Upon  this  point,  Mr.  Brown,  speaking  in  his  official  charac- 
ter for  the  Canadian  authorities,  denies  the  validitv  of  such 
claim  of  the  Company;  but,  conceeding  it  for  the  sake  of  ar- 
gument, he  insists  that  .£1,000,000  is  more  than  they  were 
entitled  to  receive  for  the  relinquishment  of  all  their  claims 
from  Canada  to  the  Rocky  Mountains  and  from  the  American 
line  to  the  extreme  north.     [Ibid.) 

It  further  appears  that  certain  persons,  Sir  Curtis  Miranda 
Lampson,  and,  it  is  believed,  Mr.  jMorgan,  banker  of  London, 
and  other  American  citizens,  are  largely  interested  in  the 
Hudson's  Bay  Company  as  stockholders  thereof.  Sir  Curtis 
Miranda  Lampson  is  named  in  the  Prospectus  already  referred 
to  as  deputy  governor. 

The  singular  spectacle  is  thus  presented  of  American  citi- 
zens, under  the  name  and  sanction  of  a  powerful  British  cor- 
poration, engaged  in  urging  huge  speculative  claims  against 
their  own  Government.  To  this  peculiar  and  remarkable  fea- 
ture of  the  case  we  desire  to  call,  as  it  deserves  the  attention 
of  the  Commissioners. 

The  transaction,  as  represented  to  the  United  States  and 
as  proved  by  the  oral  and  documentary  evidence,  may  be 
stated  in  brief  thus  :  "The  London  Financial  Society  aijreed 
to  purchase  up  the  stock,  water  it,  and  then  reissue  it  at  an 
advanced  value,  and  sell  if  they  could.  This  was  done  to  a 
great  extent,  but  no  actual  change  was  made  in  the  organzia- 
tion  of  the  Company." 

U.  S.  Misc.  Ev.,  p.  1  and  p.  20. 

We  take  it  for  granted  that  this  operation  of  watering  the 
stock  of  the  Hudson's  Bay  Company,  and  attributing  to  it  pre- 
tended rejuvenescence  by  the  empirical  contrivance  of  infus- 
ing into  its  veins,  not  a  dose  of  fresh  blood,  but  a  very  voluuii- 


118 


nous  dose  of  fresh  water,  must  have  been  conceived  in  Now 
York. 

After  the  Financial  Society  had  thus  hhwn  up  tlic  old  car- 
case of  the  Hudson's  Bay  Company  into  such  simulated  con- 
dition of  youthful  vigor,  which,  after  all,  was  nothing  but  the 
morbid  bloatedness  of  dropsy,  it  was  quite  natural,  that,  while 
their  hand  was  in,  they  should  proceed  to  water  the  Com- 
pany's claim  against  the  United  States. 

As  we  understand  the  stock  operation,  it  was  to  issue  cer- 
tificates of  <£"20  of  the  new  Company  for  <£1  of  the  old  Com- 
pany. 


TV 


Th 


lie   of 


lively  at  hand,   th( 


JUS  rule  or  proportion  oeing  suggestively  at  nana,  tne 
managers  seem  to  have  proceeded  to  apply  it  to  their  claim 
against  the  United  States. 

The  end  of  which  has  been,  to  vjater  the  claim  of  the  Com- 
pany until  it  came  to  be  watei'-logged,  and  lies  now  stretched 
out  motionless  and  lifeless,  an  object  of  pity  and  derision  to 
all  beholders. 

A  little  touch  of  discretion  is  needed,  even  in  the  inflation 
of  bubbles  :  which  seems  to  have  been  forgotten  by  the  manipu- 
lators of  this  branch  of  the  aifairs  of  the  Company. 

We  pray  the  Commissioners  to  note  how  large  was  the  prop- 
erty of  the  Hudson's  Bay  Company,  independently  of  these 
claims  against  the  United  States. 

We  quote  from  the  Prospectus  of  the  "International  Fi- 
nancial Society.     (U.  S.  Miss.  Ev.,  p.  22.) 

1.  The  commercial  property  of  the  Company. 

"  The  assets  of  the  Company,  in  which  these  subscribers  will 
be  entitled  to  an  interest  corresponding  to  the  amount  of 
their  subscription,  will  consist  of  goods  in  the  interior,  on 
shipboard,  and  other  stock  in  trade,  including  shipping,  busi- 
ness-premises, and  other  buildings  necessary  for  carrying  on 
the  fur-trade,  in  addition  to  which  there  will  be  funds  imme- 
diately available  for  the  proposed  extended  operations  of  the 
Company,  derived  partly  from  the  cash  balance  of  the  Hud- 
son's Bay  Company,  and  partly  from  the  new  issue  of  stock, 
amounting  in  the  whole  to  a  sum  of  not  less  than  £370,000." 


119 


in  New 

old  car- 
tod  con- 
but  the 
it,  while 
he  Com- 

isue  cer- 
dd  Com- 

md,  the 
jir  claim 

he  Com- 
tretched 
rision  to 

inflation 
manipu- 

Ihe  prop- 
lof  these 

nal   Fi- 


We  submit  to  the  Commissioners  that  the  above-quoted  ex- 


hibiti 


[ers  will 
)unt  of 
l-ior,  on 
;,  busi- 
ing  on 
imme- 
of  the 
I  Hud- 
stock, 
.000." 


ion,  or  commercial  assets  and  prcinisos  nj)portamiiif:f  to 
the  transaction  of  the  commercial  business  of  the  (.'omfjany, 
presents  an  imposing  sum  total,  fur  beyond  any  possible  value 
of  its  claims  against  the  United  States.  If  carried  out,  it  must 
figure  largely  as  an  item  of  the  ,£1,023,569. 

2.  Miscellaneous  real  estate  of  the  Company. 

"  In  addition  to  its  chartered  territory,  the  Company  pos- 
sesses the  following  valuable  landed  property:  Several  plots 
of  land  in  British  Columbia,  occupying  most  favorable  sites 
at  the  mouths  of  rivers,  the  titles  to  which  have  been  con- 
firmed by  Her  Majesty's  Government,  farms,  building-sites  in 
Vancouver  island,  and  in  Canada,  ten  square  miles  at  La- 
cloche,  on  Lake  Huron,  and  tracts  of  land  at  fourteen  other 
places." 

We  pray  the  Commissioners  to  contrast  this  exhibit  of 
the  miscellaneous  "valuable  landed  property"  of  the  Com- 
pany, with  all  the  pretended  property  or  possessory  rights  of 
both  Companies  in  Oregon  and  Washington.  Contrast  the 
"ten  square  miles  at  Lacloche,  at  Lake  Huron,"  with  the 
claim  at  Fort  Vancouver;  contrast  the  "tracts  of  land  at 
fourteen  other  places"  with  the  scattered  petty  land-claims 
of  the  Company  in  Oregon  and  Washington  ;  cor.trast  the 
"farms,  building-sites  in  Vancouver's  island  and  in  Canada," 
with  the  farms  and  pastures  of  the  Puget's  Sound  Agricultu- 
ral Company;  add  "several  plots  of  land  in  British  Columbia, 
occupying  most  favorable  sites  at  the  mouths  of  rivers,  the  titles 
to  which  have  been  confirmed  by  Her  Majesty's  <i:>^';jrnment:  " 
consider  all  this,  and  then  determine  how  large  a  sum,  in  the 
general  exhibit  of  the  Company's  property  and  assets,  is  com- 
prehended in  the  sedulously-modest  phrase  of  "  landed  prop- 
erties in  British  Columbia  and  elsewhere,"  making  part  of 
the  XI, 023,569,  and  how  little  of  that  sum  will  be  left  attribut- 
able to'claims  against  the  United  States. 

And  in  the  face  of  all  these  enormous  values  in  commercial 
assets,  buildings,  lands,  water-rights,  and  other  interests, 
real  and  personal,  which,  in  common  with  claims  against  the 


m 


120 

United  States,  p^o  to  make  up  the  woU-estimatcil  sum  total 
of  XI. 023, 5(3!),  tlic  Huflson's  l>:iy  Company,  for  itself  and  the 
Pui^ot's  Sound  Aj^ricultural  Company,  had  tlio  unimaginaI)lo 
presumption  to  come  before  the  Commission  ratin^j;  its  claim 
aijainst  the  United  States  at  the  sum  of  £l,02'>.3r>0  ;  about 
equal  in  amount  to  all  its  immense  recoj^nized  miscellaneous 
assets,  Inchidhir/  this  clnini,'  and  the  Company  now  desire  to 
amend,  by  adding  nearly  £100,000  more  to  theiv  claim,  so  as  to 
bring  it  up  nearer  still  to  .£l,r)0O,OO0,  the  estimated  value  of 
its  entire  stock,  including  all  its  miscellaneous  property  and 
all  its  vast  chartered  territorial  and  proprietory  rights  in 
America. 

We  employ  modest  terms  when  we  speak  of  these  rights  as 
vast;  they  are  truly  prodigious  in  ma^rnitude. 

3.  Territorial  rights  of  the  Company. 

"The  Company's  territory  embraces  an  estimated  area  of 
more  than  1,400,000  square  miles,  or  800,000,000  acr-s,  of 
which  a  large  area,  on  the  southern  frontier,  is  well  a  '  'cd 
for  European  colonization.     The  soil  of   this  portion  \o 

territory  is  fertile,  producing,  in  abundance,  wheat  and  other 
ceresil  crops,  and  is  capable  of  sustaining  a  numerous  popula- 
tion. It  contains  1,400  miles  of  navigable  lakes  and  rivers, 
running,  for  the  greater  part,  cast  and  west,  which  constitute 
an  important  feature  in  plans  for  establishing  the  means  of 
communication  between  the  Atlantic  and  Pacific  oceans,  across 
the  continent  of  British  NortJj  America,  as  well  as  for  imme- 
diate settlement  in  the  intervening  country.  The  territory 
is,  moreover,  rich  in  mineral  wealth,  including  coal,  lead,  and 
iron." 

Here  is  a  marvellous  exhibition  of  property  ;  nearly  one  mil- 
lion and  a  half  square  miles  of  land,  or  nearly  one  thousand 
million  acres  ;  of  which.,  a  large  area,  well  adapted  for  coloni- 
zation ;  fertile,  producing  cereal  crops  in  abundance,  and  ca- 
pable of  sustaining  a  numerous  population  ;  with  fourteen  hun- 
dred miles  of  navigable  lakes  and  rivers;  rich  in  mineral  wealth, 
including;  coal,  lead,  and  iron  ;  all  this  the  undisputed  property 
of  the  Company  in  fee  simple,  and  yet  appraised  by  competent 
valuers,  arid  by  free  agreement  of  sagacious  and  experienced 
vendor  and  vendee  at  c£500,000;  and  then  contrast  this  honest 


121 


no  tnil- 
usand 
coloni- 
!ul  ca- 
ll hun- 
ealth, 
operty 
pctent 
ienced 
honest 


valuation  with  the  dishonest  valuation  of  €1,110,850  finally 
placed  by  the  Companies  upon  the  relatively  trivial  and  insiji;- 
nificant  possessory  interests  held  or  claimod  by  them  within 
the  United  States. 

While  thus  analyzing  these  documents,  and  comparing  the 
estimates  they  contain  with  those  before  the  Commissioners,  in 
the  memorials  of  the  two  Companies,  and  in  the  testimony  of 
their  witnesses,  it  is  dilHcult  to  repress  the  sentiments  of  in- 
dignation which  arise  irrepressibly  in  the  mind,  or  to  refrain 
from  applying  to  the  sordid  fabricators  of  such  claims,  and 
of  such  testimony,  the  appropriate  language  of  reprobation 
and  scorn. 

Under  ordinary  circumstances,  it  would  have  been  sufficient 
to  lay  these  documents  before  the  Commissioners,  alongside 
of  the  memorials  of  the  two  Companies,  and  without  argu- 
ment, as  without  other  evidence,  to  leave  the  (Jommissioners 
to  judge. 

But  the  gravity  of  an  international  procedure,  before  an 
elevated  international  court,  seemed  to  constrain  the  United 
States  to  a  different  course;  that  is,  to  take  up  the  testimony 
of  the  claimants,  man  by  man,  and  fact  by  fact,  as  we  have 
done,  and  to  demonstrate  the  interested  exaggeration  and 
mercenary  misrepresentation  of  the  Company's  factors,  agents, 
and  instruments,  by  the  overwhelming  mass  of  contradictory 
testimony,  which  we  have  brought  forward,  from  the  lips  of  a 
cloud  of  witnesses,  not  surpassable  in  dignity,  general  intelli- 
gence, especial  knowledge,  or  personal  worth,  by  any  body  of 
witnesses  ever  produced  in  any  cause  in  the  judicial  history 
of  Europe  or  iVmerica. 

VII.  Remarks  on  legal  opinions  in  favor  of  the  Companij. 

We  propose  to  make  some  brief  comments  on  the  legal  opin- 
ions concerning  the  Company's  rig'ats,  referred  to  in  the  Com- 
pany's argument. 

These    opinions    emanate  frjm    different   members   of   the 

legal  profession,  living  or  deceased,  including  Mr.  Richard  S. 

Co-xe,  Mr.  Webster,  Mr.  Josiah  Randall,  Mr.  Edwin  M.  Stan- 
16 


122 


viPI 


ton,  and  others.  The  opinions  were  obtained  at  the  instance 
of  the  Company  in  the  years  1848  and  1849,  and  were,  we 
presunie,  paid  for  as  professional  labor,  and  collcctcMl  in  a 
printed  pamphle*",  under  the  inspiration,  it  is  supposed,  of  Sir 
G.  Simpson. 

The  object  of  these  opinions  was  to  influence  favorably  for 
the  Company  the  negotiations  then  pending  for  a  settlement 
of  the  Company's  claims  against  the  United  States. 

We  find  no  fault  with  the  procurement  of  these  opinions  for 
the  purpose  intended.     It  was  perhaps  quite  legitimate. 

But  we  submit,  that  lit'le  authority  can  be  given  to  such 
mere  ex  parte  legal  opinions  thus  rendered.  They  should 
more  properly  be  denominated  arguments  thai  opinions.  Pro- 
fessional gentlemen  are  often  applied  to,  as  on  this  occasion, 
for  an  exercise  of  their  leijal  learning;  in  such  a  manner  as  to 
present  a  certain  side  of  a  question  in  the  strongest  light. 
For  this  purpose  they  receive  their  fee,  and  for  this  purpose 
they  t'xercise  their  skill.  If  a  lawyer  should  be  so  unsophis- 
ticated as  to  render  an  opinion  adverse  to  his  client's  interests, 
such  opinion  would  not  be  very  extensively  promulgated  by 
the  disappointed  client,  and  the  counsel  who  had  given  such 
opinion  would  not  be  likely  to  be  called  upon  for  any  future 
exhibitions  of  his  perverse  learning. 

If  Mr.  Daniel  Webster,  as  judge,  had,  after  due  considera- 
tion, given  an  opinion  in  favor  of  the  Company,  it  would  be 
justly  entitled  to  great  weight.  But  an  opinion  from  Mr. 
Webster  as  the  feed-advocate  of  the  Company  has  no  other 
force  than  its  intrinsic  merits  impart.  In  such  case,  his  opin- 
ion is  not  to  be  weighed,  it  is  to  be  considered. 

In  these  remarks,  wo,  of  course,  do  not  in  any  degree  in- 
tend to  censure  the  practice  of  members  of  the  bar  in  giving 
this  class  of  opinions,  but  merely  to  point  out  their  true  char- 
acter, that  they  may  be  received  in  their  proper  light,  as  argu- 
ments and  not  decisions. 

With  these  observations,  we  now  refer  to  certain  points 
of  tliese  opinions,  in  which  we  do  not  concur:  without  at- 
tempting to  follow  the  opinions  in  the  order  in  which  they  are 
printed  in  the  pamphlet  compilation. 


123 

Mr.  R.  S.  Coxc  says  : 

"  It  is,  I  think,  clear,  that  in  considering  this  point, (the  rights 
of  the  Company,)  reference  must  be  had  to  the  law  of  En^r. 
Jand,  which  must  furnish  the  rule  by  which  these  rights  are 
to  be  defined." 

Pamphlet,  p.  3. 

AVedo  not  consider  this  proposition  as  entirely  accurate. 
If  we  wish  to  ascertain  under  what  authority  the  Company,  as 
a  corporation,  were  being  and  acting  in  the  disputed  territory 
and  what  privileges  they  were  authorized  to  exercise,  it  is 
necessary  to  refer  to  the  laws  of  England.  If,  for  instance, 
that  law  empowered  the  Company  to  carry  on  exclusive  trade 
with  the  Indians  in  the  territory  for  ten  years,  with  express 
denial  of  all  other  privilege,  and  a  positive  prohibition  of 
longer  extension  of  time,  such  action  of  the  English  law  would 
conclusively  determine  the  rights  of  the  Company  in  these  re- 
gards. It  is  upon  this  ground,  that,  as  we  conceive,  the  Com- 
pany s  corporate  character,  and  its  duration  in  the  territory, 
are  regulated  and  determined  by  the  license  of  trade. 

-But  when  we  come  to  ascertain  the  possessory  rights  of  the 
Company,  then,  in  addition  to  the  English  law,  we  hive  to  con- 
sider the  law  of  the  United  States,  and  that  by  virtue  of  the 
principle  of  law  known  as  the  lev  loci  rei  nta>.  This  rule  of 
law  is  laid  down  by  Mr.  Wheaton,  as  follows: 

"The  law  of  a  place  whore  real  property  is  situated  governs 
exclusively  as  to  the  tenure,  the  title,  and  the  descent  of  such 
property. 

Wheaton's  International  Lav.,  p.  81. 

See   further,   Iluberus,   do   r„nflictu    Leg.,   1,   title  3 
sec.  15.  ' 

The  general  rules  ns  to  the  transfer  of  immovable  prop- 
erty, inter  vivos,  on  which  the  greatest  agreement  amon^r  the 
courts  and  jurists  is  found,  are  that  the  hx  loci  rei  sitae'^mn^i 
govern  in  determining:  1.  The  disposition  of  immovable  prop- 
erty,  (real  estate;)  2.  The  personal  caimcit^,  to  take  or  to 
transfer  immovable  property;  3.  The  forii.alitics  of  possess- 
ing title  to  immovable  property;   4.  The  extent  of  the  do- 


m 


124 

minion  over  immovable  property;  5.  The  question  what  is 
and  what  is  not  real  estate. 

Wheaton,  p.  81,  (note.) 

Story's  Conflict  of  Laws,  (Redfield's  edition,)  ch.  10, 
sec.  424—454. 

The  first  principle  of  law,  to  which  we  call  attention  in  this 
connection,  is  this:  The  territory  was  always  American  terri- 
tory. The  treaty  of  1846  was  not  a  treaty  of  cession;  it 
was  a  treaty  of  adjustment  of  boundaries.  The  treaty  did 
not  confer  any  new  title  on  the  United  States.  It  merely 
acknowledged  the  title  already  existing.  The  United  States 
had  hitherto,  for  a  period  long  antecedent,  claimed  the  terri- 
tory as  a  part  of  the  United  States,  and  this  claim  was  con- 
troverted by  Great  Britain.  By  the  treaty  of  184G,  the  title 
of  the  United  States  was  admitted.  The  treaty  of  1846 
therefore  was  not  a  treaty  of  cession:  it  was  a  treaty  for  the 
adjustment  of  boundaries. 

The  distinction  between  these  two  kinds  of  treaty  is  well 
expounded  by  Mr.  Coxe,  in  his  opinion,  (p.  47.)  After  stating 
that,  upon  the  cession  of  a  territory  by  treaty,  the  antecedent 
titles  of  land,  conferred  by  the  ceding  sovereign  in  the  terri. 
tory,  are  binding  on  the  sovereign  receiving  the  cession,  he 
adds: 

"  In  regard  to  treaties  entered  into  for  the  purpose  of  adjust- 
ing controverted  questions  of  boundary,  the  principles  of  law 
applicable  to  them  are  widely  dissimilar,  if  not  diametrically 
the  reverse.  Each  nation  admits  by  an  instrr.meiit  of  this 
character  that  its  former  pretensions,  beyond  the  now-adjusted 
line,  have  been  unfounded,  and  that  the  rights  of  the  other 
party  were  originally  valid.  By  the  mere  force  and  effect  of 
such  a  settlement,  therefore,  all  the  acts  of  either  party, 
beyond  the  boundary  now  fixed  as  the  limit  of  its  territory, 
are  annulled  and  invalidated.  The  authority  of  the  govern- 
ment from  which  they  emanated  is  admitted  to  have  been  ab 
ougine,  defective  and  invalid,  and  any  title  originating  in  a 
source  and  resting  on  a  foundation  confessedly  wrong,  cannot 
be  maintained." 


The  question  of  title  to  land,  then,  in  this  territory,  is  to 


125 


10, 


idjust- 
ot"  law 
rically 
f  this 
justed 
other 
act  of 
party, 
ritory, 
overn- 
ccn  ab 
|g  in  a 
jannot 


',  is  to 


be  determined,  not  by  reference  to  English  law,  but  to  the  law 
of  the  United  States. 

From  these  principles  of  law  important  consequences  flow. 

According  to  the  land-law  of  the  United  States,  as  appli- 
cable to  this  territory  at  the  date  of  the  treaty  of  1846,  there 
was  no  provision,  by  which  title  to  land  could  be  acquired  in 
the  territory.     The  lands  had  not  been  surveyed,  and  were 


therefoi 


)t  open  t( 


to  general  purchase.  The  donation  law  was 
not  then  in  existence,  and  the  pre-emption  law  was  inoperative, 
because  the  Indian  title  had  not  been  extinjiuished.  Under 
this  state  of  the  law,  all  persons  in  the  occupation  of  land  in 
the  territory  were  liable  to  be  treated  as  trespassers. 

To  avoid  this  harsh  result,  the  treaty  provided,  in  exception 
of  the  general  principles  of  law  applicable  to  the  case,  that 
the  possessory  rights  of  the  Company  to  land  in  the  territory 
should  be  respected.  Without  this  provision  in  the  treaty, 
the  Company  would  have  had  no  rights  whatever  in  land:  the 
treaty  protected  their  possessory  rights,  but  nothing  more. 

We  think,  therefore,  we  have  established  the  proposition 
we  started  with,  namely,  that,  in  determining  the  rights  of 
the  Company,  reference  must  not  be  had  exclusively  to  the 
law  of  England;  but,  on  the  co  irary,  so  far  as  question  of 
title  to  land  is  concerned,  reference  must  l)e  had  to  the  law 
of  the  United  States. 

The  next  correction  we  make  of  the  opinion  of  Mr.  Coxe  is 
in  reference  to  the  following  passage: 

"  The  territory  on  the  west  coast  of  America  wa>  not  com- 
prehended within  this  original  charter,  but  its  general  pre- 
visions have  been  extended  to  that  region  by  subsequent  nrts. 
The  statute  40  George  III,  passed  on  the  11th  of  An:^ust, 
1803,  that  of  July  2,  1831,  the  royal  grant  of  21st  December, 
1821,  and  another  still  more  recent,  to  be  found  in  Groenhow, 
extend  territorial  rights  to  this  northwest  country,  and  modify 
in  some  particulars  the  terms  of  the  original  grant."  (p.  4.) 

We  deny  that  the  territorial  rights  of  the  Company  were 
extended  to  this  "  tiorthwcst  country,"  and  we  call  for  the 
production  of  any  charter  or  license  from  the  British  Crown, 


126 


or  act  of  tlie  British  Parliament,  extending  the  territorial  rights 
of  the  Company  to  this  region. 

By  their  original  charter,  the  Company  were  entitled  to  three 
great  rights  at  most,  namely  :  1,  possibly  a  mi  lified  jurisdic- 
tion ;  2,  possil)ly,  but  probably  not,  exclusive  trade;  and,  3, 
proprietary  title  to  all  lands.  But  the  original  charter  was 
expressly  limited  to  the  country  around  Baffin's  bay. 

In  the  country  around  Baffin's  bay,  they  were  in  fact  the 
governing  power,  with  right  (if  not  exclusive)  of  every  kind 
of  trade, — proprietors  of  all  the  soil. 

In  the  northwest  country,  it  was  the  same  Company,  it  is 
true,  but  with  more  restricted  powers  and  privileges.  They 
were  not  the  governing  power,  though  authorized  to  exercise 
certain  powers  in  the  suppression  of  crime;  they  had  only  an 
exclusive  Indian  trade;  and  they  were  not  universal  proprie- 
taries of  the  soil.  Their  rights  and  privileges  in  the  north- 
west country  were  not  by  virtue  of  their  original  charter,  but 
under  their  special  license  of  trade  with  the  Indians. 

Mr.  Coxe  further  says: 

"Had  the  territory  in  question  been  ascertained  to  be  with- 
in the  absolute  control  and  sovereignty  of  Great  Britain,  it 
would  have  been  difficult  to  prescribe  any  limits  to  the  terri- 
torial rights  of  the  Hudson's  Bay  Company."     (p.  4.) 

We  shall  show  in  the  sequel,  by  conclusive  evidence,  that 
JNlr.  Coxe  is  totally  mistaken  in  this  opinion. 

The  very  condition  of  affairs,  which  he  supposes  conject- 
urally  might  have  taken  place,  with  regard  to  the  Company 
in  this  territory,  has  actually  taken  place  in  British  Columbia, 
and  their  riglits  have  received  a  practical  construction  from 
the  British  Government,  and  which,  being  acfjuiesced  in  by  the 
Company,  furnishes  a  conclusive  answer  to  Mr.  Coxe's  suppo- 
sition. 

The  British  Government,  by  proclamation  of  September  2, 
1858,  revoked  the  license  of  exclusive  trade  with  the  Jndians. 
U.  S.  Misc.  Ev.,  p.  388. 


The  Company  promptly  submitted   to   tliat,  as  a,  legitimate 
exercise  of  power. 


127 

Upon  this  subject,  Gov.  Dougla.s,  in  his  despatch   to  Sir  E. 
^-  Lytton,  of  (late  of  Novomber  27,  I808,  says  • 

-It   is,  perh.p.s,  unnecessary  to  occupy  jonv  'time  with  re- 
n.     ks   concennng   the   privileges  of  the    Hudson's  Bay  CW 
P-.},  ^  h.ch  have  ceased  to  exist  in  British  Columbia.'' 
u.  fe.  hv.,  Mis.,  p.  303. 

Further,  we   find   the  following   extract   in    a  letter  of  the 

date  of  November    24,  1858,  from   John    \Vark    and   Du^aid 

MacUvKsh,  ch.ef  factors  of  the  Company,  to   Gov.  Dougtas  : 

Ue   beg  leave   to  call   your  excellency's  attention    to  the 

0  low.ng  hst  0     claims  to  land  in  British  Columbia,  which  we 

consider   as   belonging   to    the   Hudson's  Bay  Company,  and 

rus    that  then,  title  to  the  same  will  eventually  be  confil-med 

by  Her  Majesty's  Government." 

Here  follows  the  list  of  fourteen  forts. 
U.  S.  Ev.,  Misc.,  p.  353. 

Here  we  see  no  claim  of  general  sovereignty,  or  universal 
piopnetary  right,  to  all  the  lands  of  the  northwest ;  but  a 
modest  petition  is  made  for  concessions  of  title  to  a  few  iso- 
Jated  spots  of  ground. 

The  despatch  of  Governor  Douglas,  which  accompanies  this 
modest  petition,  throws  a  flood  of  light  on  the  right  of  the 
Company  to  land  in  British  Columbia. 

lie  says : 


"Ilcr  Majesty'.   Government  may  probably  conshler  that 

:quired   rights   to  the  soil 

],„  ,1  -      •,  ,.  ".    1 -"  **•■'•  improvement,  as  well   as 

by  the  public  service  which   the  Co 


tl,«  IT    1    '  ,•'  n-^  -   v^uvurnmenc  may  probably  c 
he  Hudson  s  Bay  Company  have  acquired   rights  to  the  soil 
,   .    "°^'  Pej-missory  occupation  and  ° 

)mpany   have   rendered  t 


the  country,  and  may,  therefo 


)fjud 


icious  liberali 


re,  meet  their  claims  i 


n  a  spirit 


pany  s  possessory  rights  in  0 


ty,  especially  as  the  settlement  of  the  C 


om- 


tion   of  the  third  article  of  tl 


regon,  rusting  on   the  construc- 


le    tr 


1846,  with   the  United  States  of  A 


,    .....   ...^   v....tcu  oiaies  or  America,   wii 

influenced  by  the  decision   of  Her  Majesty's  G 
allowing  or  disallowing  the  nossessorv  rLrhr.  nf 


eaty  of  the  17th  of  July 


ica,   will   probably  be 


allowing  or  disallowinrr  tl 
in  British  Columbia. 


Tovernment  m 


possessory  rights  of  the  Company 


U.  S.  Mis.  Ey 


p.  352. 


128 


9f 


m 


To  comprehend  the  full  force  of  these  expressions  of  Gov- 
ernor Doughis,  it  is  proper  to  bear  in  mind,  that  he  was  a 
strong  partisan  of  the  Company,  having  long  been  in  high 
officiiil  position  in  tts  service,  and  having  previously  mani- 
fested his  zeal  by  giving  a  strongly-colored  deposition  in 
its  favor.  Yet  Governor  Douglas,  decided  as  are  his  partiali- 
ties for  the  Company,  does  not  venture  to  claim  the  sites  of 
a  few  obscure  forts  for  it  as  a  matter  of  right,  but  appeals  to 
the  grace  and  bounty  of  the  Government,  and  this  at  the  very 
time  when  he  is  seeking  to  have  the  business  so  managed  as  to 
strengthen  the  Company's  claim  to  lands  within  the  United 
States. 

We  think  we  may  safely  conclude,  in  opposition  to  the  opin- 
ion of  Mr.  Coxe,  that  there  is  no  difficulty  in  prescribing 
limits  to  the  territorial  rights  of  the  Company,  in  territory  of 
the  northwest,  within  the  absolute  control  and  sovereignty  of 
Great  Britain.  This  great  sovereign  power,  which  assumed 
such  vast  proportions  in  the  imagination  of  Mr.  Coxe,  lets 
fall  its  sceptre,  and  shrinks  within  the  most  narrow  limits,  at 
a  few  written  words  from  Sir  E.  B.  Lytton. 

Further,  Mr.  Coxe  says  : 

"They  (the  Company)  appear,  with  the  knowledge,  and  at 
least  the  implied  sanction  of  that  Government,  (Great  Britain,) 
to  exercise  an  unlimited  authority,  as  well  to  grant  to  others, 
as  also  to  appropriate  in  severalty,  the  absolute  proprietor- 
ship of  such  lands  as  they  pleased."  (p.  5.) 

We  know  of  no  fact,  which  justifies  this  statement  in  ref- 
erence to  the  territory  in  the  northwest,  including  this  terri- 
tory. We  utterly  deny  its  truth.  Such  statement  may  be 
true  in  regard  to  the  region  embraced  within  their  original 
charter,  around  Baffin's  bay;  but  it  is  entirely  unfounded, 
so  far  as  the  territory  here  in  question  is  concerned. 

Mr.  Coxe  has  failed  to  appreciate  the  decisively-important 
fact,  that  the  Company  occupied  a  difi'erent  position  in 
reference  to  the  territory  in  the  northwest,  from  what  they  did 
in  reference  to  the  territory  embraced  in  their  original  charter. 
The  Company  on  Rupert's  Land  were  quite  another  body  from 


12l> 


in  ref- 
terri- 

|ay  be 
i";inal 

glided, 

)rtant 
)n  in 
3y  did 
ter. 
from 


what  they  were  on  the  Columbia.  The  difterencc  between  the 
Compuny  at  Yoik  Factory  and  at  Astoria,  was  as  great  as 
was  that  of  the  Esist  India  Comi)any  on  the  Ganges  and  on  the 
banks  of  tlie  Thames. 

At  Norway  House,  the  Company  is  absolute  proprietor  of 
a  vast  portion  of  the  continent;  iu  Oregon  Territory,  it  was 
a  mere  fur-trader,  with  temporary  occupancy  of  land,  and 
shorn  of  all  its  princely  prerogatives. 

It  is  from  not  keeping  in  mind  this  cardinal  fact,  that 
such  erroneous  impressions  have  been  taken  up  by  Mr.  Co.\e 
and  others,  as  to  the  "  possessory  rights"  of  the  Company. 

To  illustrate  conclusively  the  erro''  into  which  Mr.  Coxe 
has  fallen,  in  the  paragraph  of  his  opinion  on  which  we  are 
now  commenting,  we  ask  for  a  single  instance  in  which  the 
Company  have  grante<l  to  others  the  absolute  proprietorship 
of  a>i[i  lands,  as  he  alleges  they  have  done,  in  this  territory, 
west  of  the  liocky  Mountains.  We  deny  that  a  single  exam- 
ple of  this  can  be  found. 

Mr.  Webster  says,  in  his  opinion,  speaking  of  the  possessory 
rights  of  the  Company  :  "  Some  years  ago,  during  the  contro- 
versy respecting  Lord  Selkirk's  settlement,  the  nature  of 
these  possessory  rights  was  examined  and  considered  by  very 
eminent  counsel  in  England,  with  Sir  Samuel  Romilly  at  their 
head."     (p.  G,) 

It  is  evident  Mr.  Webster  falls  into  the  material  error  of 
assuming  that  the  Company  had  the  same  power  and  rights 
in  Oregon  Territory  as  at  Lord  Selkirk's  settlement  on  the 
lied  River  of  the  North.     He  confounds  facts  wholly  distinct. 

The  Company  claimed  the  Ued-river  country  as  embraced 
in  their  original  charter,  and  they  asserted  as  large  a  measure 
of  rights  there,  as  in  the  regions  lying  immediately  around 
Baffin's  bay.  But  even  there  the  claim  was  disputed.  But 
they  do  not  pretend  to  have  had  any  such  power  on  the 
wes.;  of  the  Rocky  Mountains.  This  fundamental  error  on 
Mr.  Webster's  part,  arising,  doubtless,  from  an  imperfect  ex- 
amination of  the  subject,  deprives  iiis  reasoning  and  his 
opinion  of  all  the  authority  it  might  otbcrwise  derive  from 
his  great  name. 
17 


130 


Mr.  Josiah  Randall  says: 

"It  is  true,  the  8d  section  speaks  of  the  possessory  rights 
of  the  Hudson's  Bay  Company.  This  is  the  language  used  in 
treaties  when  the  rights  of  individuals  are  intended  to  be  re- 
served.'"     (p.  17.) 

We  totally  deny  this  proposition.  It  is  not  true.  By  ref- 
erence to  various  treaties  made  by  the  United  States,  it  will 
be  descovered  that  such  is  not  the  usual  language  employed 
to  protect  titles. 

In  the  treaty  of  1794,  between  the  United  States  and  Great 
Britain,  it  is  provided  as  follows: 

"  It  is  agreed  that  British  subjects  who  now  hold  lands  in 
the  territories  of  the  United  States,  and  American  citizens 
who  now  hold  lands  in  the  dominions  of  His  Majesty,  shall  con- 
tinue to  hold  them  according  to  the  nature  and  tenure  of  their 
respective  estates  and  titles  therein.'' 
U.  S.  Laws,  vol.  8,  p.  122. 

In  the  treaty  of  1819,  between  the  United  States  and  Spain, 
it  is  provided  as  follows  : 

"All  the  grants  of  land  made  before  the  24th  of  January 
1818,  by  His  Catholic  Majesty,  or  by  his  lawful  authorities  in 
the  said  territories,  shall  be  confirmed  to  the  persons  in  pos- 
session of  the  lands,  to  the  same  extent  that  the  same  grants 
would  be  valid,  if  the  territories  had  remained  under  the  do- 
minion of  His  Catholic  Majesty." 
U.  S.  Laws,  vol.  8,  p.  258. 

The  treaty  between  the  United  States  and  the  Republic  of 
France,  of  1803,  provides  : 

"Art.  3.  The  inhabitants  of  the  ceded  territory  sliall  be 
incorporated  into  the  Union  of  the  United  States,  and  admitted 
as  soon  as  possible,  according  to  the  principles  of  the  Federal 
Constitution,  to  the  enjoyment  of  all  the  rights,  advantages, 
and  immrnities  of  citizens  of  the  United  States,  and  in  the 
meantime  they  shall  be  maintained  and  protected  in  the  free 
enjoyment  of  their  liberty,  pioperty,  and  the  religion  which 
they  profess." 

U.  S.  Laws,  vol,  8,  p.  202. 


•y  rights 
!  used  in 
to  be  re- 


Bj  ref- 
s,  it  will 
m  ployed 

id  Great 


lands  in 
citizens 
lall  con- 
of  tlieir 


I  Spf 


am, 


January 
'ities  in 

in  pos- 
!  grants 

the  do- 


nblic  of 


hall  be 
Imitted 
federal 
ntages, 
in  the 
he  free 
I  which 


131 

The  treaty  between  the  United  States 
as  loJlows ; 


and  Mexico  provides 


ing  ^Iwcans'lol^ri  V?Tl  '^  '"''^  '^'"^'  "^  belong- 
spected.''  '  established  there,  shall  be  inviolably  rl 

U.  S.  Laws,  vol.  9,  p.  929. 

riI?°of  ".L"T  T'\  '■  V''  "•""'^  "f  '^*«'  '"  ^"f-^^^"""  to  the 

torent      J  he  treaty  speaks  of  "  possessory  r,V|us  "  and  nr„ 
vkIcs  tliat  thcv  shall  bo  rosBected      T,  „     /  ' ,  ^ 

».■  by  implieaiie,,.      ""  "'P'"'^'"'     It  confers  no  ftle  ir.  terms 

The  obll,,aUon  to  respect  "the  possessory  rights  "  of  the 
Conjpany  .„  p,.„      ,,  „   ,„,  ,^,.„,„^^  .^  J^^^^  of  «. 

cisely  the  same  character  in  this   tronfv  .,a  Jv.  fi        i  i-       • 
-u,n„„  hy  the  Unite,,  States  in' th::^::!  Ta"    ledr 

orti?e"n    l""."' p"'  "r  "'^  '"'^"''"'^  "f '"'-ost  in  t  J 

''posse  ,0  ;:,:""  ,  ^^  *^"""'r^''  oxp,.essly  limited  to 
possessory  lights,  whereas  >n  tho  case  of  the  other  treaties 
ere  was  no  such  limitation  of  tho  ,uantu,n  of  interest.     Z 

«  0  of  the  phrase  "possessory  rights-  is  peculiar  to  this  trea.; 

and  of  course  hus  a  peculiar  and  appropriate  signiBcation. 

Hon.  E.  JI.  Stanton,  in  his  opinion,  says  : 

"That  exclu.sive  possession  and  dominion,  under  sanctio,,  „f 

In  this,  Mr  Stanton  has  gone  far  beyond  the  Company  for 
they  .ly  ...  ^^.essory  rights"  in  ......Jand^l'a::: 

pos'^osViln'T  tl'  T'^"'"'  '"  ''"  P""^  ''  ^^^'  -«^^  --J-ive 
possession  of  the  territory  north  of  the  Columbia  was  l.^allv 

impossible.  ;is  tho  linono«  ^e  ...„.i ,  ^  ^"^g^^^J 

ly  reseri 


ot  Ainoricar,  citizens  to  use  the  territory      H 

nf      oil       ^4-1.  _..       .  .  •'■  -^^ 


of  all   other  persons   tl 


le  occu 


ive  been,  as  a  practical  question,  in  th 


the  rights 

owever  exclusive 

pation   of  the  Company  mi<.ht 


e  country  north  of  th( 


-no 


Columbia,  in  ler^ul  intendment  it  was  not  exclusive  of  Ameri- 
can citizens,  their  right  of  occupation  being  expressly  re- 
served. The  treaty  of  joint  occupancy  was  also  inconsistent 
with  any  sucli  exclusive  occupation  of  a  great  geographical 
division  of  the  territory  by  the  Hudson's  Bay  Company. 

Some  of  these  gentlemen  allow  themselves  to  be  bctrayod 
into  singular  accuracy  of  thought  and  expression,  to  say  tho 
least,  when  they  affirm  or  argue  that  "possessory  rights"  and 
"proprietary  rights"  arc  equivalent  phrases,  and  one  implies 
a  title  of  the  same  dignity  as  the  former. 

We  might  as  well  argue  that  the  licensee  has  the  same 
title  as  the  licensor;  tho  tenant  as  the  landlord;  the  pre- 
emptor  as  the  proprietor-sovereign  of  the  public  domain  ;  the 
Indians,  as  the  Government. 

A  party  who  is  in  possession  of  land  as  a  mere  trespasser, — 
who  has  no  pretence  or  color  of  title,  as  against  an  admitted 
real  owner  of  the  land, — has,  nevertheless,  a  possessory  right, 
upon  which  he  can  maintain  suit  against  a  junior  trespasser. 
{See  Hubbard  vs.  Little,  9  Cushing,  475;  Stearns  vs,  Hender- 
sass,  Ibid,  p.  497.)  But  to  protend  that  such  admitted  tres- 
passer is,  in  fact  or  law,  the  true  owner,  would  be  absurd,  and 
mere  confusion  of  language. 

Title  by  possession  does  not  necessarily  follow  on  the  pre- 
sumption of  a  grant. 

Stearns  on  Ileal  Actions,  238. 

Such  errors  as  this,  which  ccnstitute  the  very  lifo-blooil  of 
the  most  elaborate  of  the  opinions  under  review,  serve  to 
manifest  the  uncertainty  of  opinions,  not  judicial  in  their  char- 
acter, made  up  without  contentious  argument,  and  founded  on 
incomplete  facts  communicated  by  interested  parties. 

The  completcst  of  all  these  opinions,  that  of  Mr.  Coxe,  is 
from  beginning  to  end  mere  argument,  on  partial  facts  and 
imperfect  investigation  of  the  law,  and  strongly  illustrates 
the  inconclusiveness  and  unauth.oritativencss  of  the  entire 
collection. 

Not  one  of  these  gentlemen  could  or  would  hi.ve  rendered 
such  opinion  with  the  present  record  before  him.     Any  one  of 


mn 


fXC,   IS 
IS     ill)  (I 

tratcs 
lentire 

iderccl 
lone  of 


them, — Mr.  Coxo,  if  living,  Mr.  Stanton  now, — wo  fool  snre 
if  in  aftor  life  called  upon  to  consider  tlio  siiltjoct  judicially, 
would,  in  view  of  the  adverse  facts  and  ar^uuiciits  which  the 
Government  presents,  overrule  his  har  opinion  as  readily  as 
an  upright  judge  corrects  in  hunc  a  hasty  ruling  at  nisi  pi  ins, 
or  grants  review  or  new  trial  on  satisfactory  exhibition  of 
error,  and  would  decide  this  case,  in  spite  of  his  printed  btir 
opinion,  in  favor  of  the  United  States,  and  against  the  Conn- 
pan  y. 

At  the  date  of  those  opinions,  the  legal  profession  in  the 
United  States  were  not  so  conversant  with  foreign  titles  as 
they  had  been  at  an  earlier  day,  in  the  course  of  the  adjudica- 
tion of  land  claims  in  Louisiana  and  Florida;  or  as  they  have 
since  become  by  study  of  land-titles  in  California  and  New 
Mexico. 

The  last  class  of  titles  have  been  pre-eminently  instructive 
to  the  profession. 

We  begin  with  the  stipulation  of  the  treaty  of  Guadalupe 
Hidalgo,  affirming  protection  and  inviolability  to  property  in 
the  territories  ceded  by  the  Mexican  Republic  to  the  United 
States. 

As  to  the  killing  of  cattle,  or  trespasses  on  land,  the  Gov- 
ernment afforded  such  protection  in  the  shape  of  proper  laws, 
and  courts  of  justice   open  to  all  for   the   redress    of  private 


wrongs. 


Such  protection  the  Iluilson's  Bay  Company  has  been  enti- 
tled to  in  Oregon  and  Washino;ton;  and  if  it  has  not  in  fact 
been  so  protected,  (which  wo  deny,)  the  injury  it  may  thereby 
have  suffered  is  imputable  to  its  neglect  or  gross  ignorance 
of  its  rights,  or  perhaps  to  its  deliberate  calculation  to  get 
up  a  case  against  the  Government. 

In  the  legislation  respecting  land  claims  in  California  anu 
New  ^Mexico,  and  in  the  numerous  adjudications  thereon,  we 
have  explored  the  difference  between  legal  or  complete  titles, — 
inchoate  or  equitable  titles, — and  mere  possessory  rights  under 
license,  which  are  neither  legal  titles,  nor  equitable  ones,  but 
only  terminable  temporary  possession,  expiring  with  the 
license.     In  cases  of  the  first  and  second  class,  our  hiw  reports 


134 

abound;  and  cnsps  of  the  third  class  arc  not  wanting:  that  of 
Dellitrn  rn.  The  United  States,  licreinheforc  cited,  being 
strikingly  similar  to  that  of  the  HiuUon  Bay  Company. 


VIII.  Anthoi'itativc  Ojnnions  adverse  to  the  Conipamj. 

Wiiilo  tlw»  learned  counsel  for  the  Hudson's  Bay  Company 
riclies  on  opinions  contained  in  the  pamphlet,  in  assertion  of 
the  rights  of  the  Company,  he  seems  indisposed  to  bring  for- 
M'ard  the  very  numerous  opinions  on  the  subject,  which,  at 
one  time  or  another,  have  appeared  in  England.  Some  of 
these  opinions  were  olTiciiil,  rendered  at  the  call  of  the 
British  (Jovernment :  others  were  unoflicial,  obtained  by  the 
Company  or  its  iidversai'ies,  especially  during  the  controversy 
between  the  Hudson's  Bay  Company  and  the  Northwest  Com- 
pany. 

The  people  of  the  United  States  were  made  acquainted  with 
the  desperate  and  not  bloodless  controversy  between  the  Hud- 
son's Bay  Company  and  the  Northwest  Company  by  the  Earl 
of  Selkirk's  printed  exposition  of  their  respective  claims,  and 
by  the  writings  of  Washington  Irving,  to  say  nothing  of  the 
more  exact  knowledge  of  the  controversy  which  jurists  or  leg- 
islators acquired  by  the  study  of  documents  and  of  acts  of 
Parliament.  (See  Mr.  Cushing's  Report,  25th  Congress,  3d 
Session,  vol.  1,  No.  101.) 

AVe  refer  to  tlie  controversy  as  historical  matter,  by  way  of 
preface  to  the  following  remarkable  statement  made  by  Mr. 
Edward  Ellicc,  while  testifying,  June  3,  1857,  before  the  com- 
mittee of  the  House  of  Commons,  appointed  to  consider  "the 
state  of  those  British  possessions  in  North  America,  which  are 
under  the  administration  of  the  Hudson's  Bay  Company,  or 
over  which  they  possess  a  license  to  trade;"  which  statement 
we  quote  as  follows  : 

"5822.  The  Hudson's  Bay  Company  are  incorporated  under 
a  charter,  I  believe  ?  " 

"Tiiey  are  incorporated  under  a  charter." 

"5823.  What  rights  do  you  conceive  that  charter  to  give 
them?  " 


way  of 
y  Mr. 
e  com- 
•  "  the 
ch  are 
Iny,  or 
[ement 


under 


give 


185 

"I  conceive  that  charter  to  <^ivo  the  rights  exfircsscd  in  it  ; 
some  of  thoni  may  l)o  doubtful.  I  ouglit  to  h(^  able  to  (.'.\j)ros9 
a  tolerably  fair  opinion  iipon  this  subject,  since  I  havcj  takiMj 
the  o|iinion  of  every  lawyer  against  the  ('oinpsuiy  when  1  was 
opposed  to  them,  and  for  the  (Jompany  since  \  have  been  coii- 
nccteil  with  them.  We  have  tlie  opinions  of  Lord  Miinsrudd, 
Sir  Duilley  Ryder,  Sir  llichard  Lloyd,  Lord  Krskine,  (Jibbs, 
Uomilly,  Cruise,  IJell,  Scarlett,  llolroyd  ;  and  the  law  ollicers 
have  been  consulted  upon  every  occasion  by  the  (Ndonial  Of- 
fice when  this  question  has  come  under  discussion;  and  I  think 
the  universal  opinion,  without  an  exception,  of  these  eminent 
lawyers,  is,  that  the  proprietary  rights  of  the  Company  cannot 
be  dis[)uted.  Some  of  these  opinions  maintain  the  right  of  the 
Crown,  at  the  time  of  the  charter,  to  give  an  exclusive  right 
to  trade,  founded  upon  the  former  decision  of 'The  East  India 
Company  vs.  Sands,'  by  Lord  Jelfrey.  Other  lawyers  are 
doubtful  upon  the  poirit.  l»ut  it  is  scarcely  necessary  to  in- 
quire whether  the  Crown  had  the  power  or  not,  since,  if  the 
Crown  had  the  power,  it  has  not  given  the  Company  any  means 
of  enforcing  its  rights:  we  cannot  proceed  to  seize  or  confis- 
cate: at  least  I  should  think  a  lawyer  would  be  in  some  dilli- 
culty  before  he  should  advise  the  Company  to  take  that  course: 
therefore  I  hold  that  to  be  an  extremely  doubtful  question. 
But  none  of  these  eminent  lawyers,  and  no  lawyer  whose  opin- 
ion I  have  ever  heard  quoted  either  for  or  against  the  Com- 
pany, or  taken  either  for  or  against  them,  have  expressed  the 
least  doubt  as  to  the  proprietary  rights  granted  under  the 
charter." 

'•5824.  By  'proprietary  rights,'  you  mean  the  rights  of  pos- 
sessing the  soil,  as  distinguished  from  the  exclusive  right  of 
trade  'i 

"I  mean  the  same  riglits  which  were  granted  to  other  [U'o- 
prietors  ;  honorable  members  are  aware  that  this  is  the  last 
proprietary  government  in  existence.  There  were,  I  forget 
how  many,  proprietary  governments  in  AmericA  ;  Massachu- 
setts, Pennsylvania,  and  various  others ;  but  this  is  the  onlv 
case  remaining,  of  a  proprietary  right,  which  has  not  been, 
somehow  or  other,  either  purchased,  or  amalgamated  with  the 
general  rights  of  some  one  of  the  colonics  in  America." 

Report  of  Committee  on   Hudson's  Bay   Company,  p. 
827. 
Thus  we  see,   that  if,    in  the  present   case,   the  Company 
needed  bar  opinions,  they   could  have  selected   among  names 


136 


V 


ml 


the  highest  in  the  jurisprudential  annals  of  England,  from  Lord 
Mansfield's  time,  including  llyder,  Erskine,  Gibbs,  Romilly, 
down  to  the  time  of  Lord  Abinger. 

Why  does  the  learned  counsel  f.jv  the  Coni|)any  pass  by  all 
these  persons,  and  settle  down  lor  authority  upon  some  equally 
respectable  certainly,  bu*  not  equally  authoritative  lawyer, 
like  Mr.  George  M.  Bil 'o?     (Mr.  Day's  Argument.) 

To  tliis  pertinent  question  there  can  be  but  one  pertinent 
response.  The  learned  counsel  had  bccoaie  aware  that,  ac- 
cording to  tlie  whole  current  of  legal  opinion  in  England,  even 
if  the  Hudson's  Bay  Company  possessed  original  validity  of 
incorporation, — which  is  very  doubtful,  since  the  firmest  basis 
of  the  Company's  life  is  the  fact  that  it  lives, — still  the  sum 
total  of  its  rights,  within  its  chartered  limits,  is  nothing  more 
nor  less  than  proprietary  rights  in  land. 

Such  was  the  conclusion  of  the  Attorney  and  Solicitor  Gen- 
ral  for  the  time  being,  when,  in  June,  1857,  the  whole  question 
was  referred  to  them  by  the  Crown,  and  they  examined  it  in 
the  liglit  of  the  opinions  of  all  their  predecessors  back  to  the 
day  of  Lord  Mansfield. 

"NVe  quote  from  their  opinion  as  follows  : 

"  The  questions  of  the  validity  and  construction  of  the 
Hudson's  Uay  Company's  charter  cannot  be  considered  apart 
from  tlie  enjoyment  that  has  been  had  under  it  during  nearly 
two  centuries,  and  the  recognition  made  of  the  rights  of  the 
Company  in  various  acts  both  of  the  Government  and  the 
Legislature 

''Nothing  could  be  more  unjust,  or  more  opposed  to  the 
spirit  of  our  law,  than  to  try  this  charter  as  a  thing  of  yester- 
day, upon  the  principles  wl'ich  miijht  be  deemed  applicable  to 
it,  if  it  had  been  granted  within  the  last  ten  or  twenty  years. 

"  These  observations,  however,  must  be  considered  as  lim- 
ited in  their  application  to  the  territorial  rights  of  the  Com- 
pany under  the  charter,  and  to  the  necessary  incidents  or 
consefiuences  of  the  territorial  ownership.  They  do  not  ex- 
tend to  the  monopoly  of  trade,  (save  as  a  territorial  owner- 
sl'.ip  justifies  the  exclusion  of  intruders,)  or  to  tlic  I'ight  of  au 
exclusive  administration  of  ju.:tice.  '''  '''  * 

"In  our  opinion,  the  Crown   could  not   now,  with  justice, 


]?.7 


of  the 

apart 

nearly 

of  the 

d   the 


years. 
IS  liin- 

Com- 
liits  or 

)t  cx- 
)\vner- 

of  au 


listice 


raise  the  question  of  the  general  validity  of  the  charter;  but 
*         '•'  '•'     on  every  le^jal  principle,  the  Couipany's  ter- 

ritorial ownership  of  the  lands  granted,  and  the  rights  neces- 
sarily incidental   thereto,  (as,  for   example,  the   right   of  ex- 


)f 


clmdng   trom    tlioir   territory  persons  acting  in  violation  o 
their  regulations,)  ought  to  be  deemed  lo  be  valid. 

"But,  with  respect  to  any  rights  of  government,  taxation, 
exclusive  administration  of  justice,  or  exclusive  trade  other- 


wise than  as  a  consequence  or  the  right  ot  ownership  ot  the 
land,  such  rights  could  not  be  legally  insisted  on  by  tlie  Hud- 
son's Bav  Company  as  havinsr  been  lejiallv  sranted  to  them 
by  the  Crown."  -^^  *  *  *     •        * 

The  opinion  of  the  Attorney  and  Solicitor  Gen'-.ral,  from 
which  the  above  extracts  are  made,  appears  in  thj  Appendix 
to  the  Report  of  the  House  of  Commons.  It  's  dated  July, 
1857. 

Thus  we  perceive  that  the  conclusion,  which  Mr.  EUice  ar- 
rived at,  did  but  anticipate  the  conclusion  of  the  Attorney 
and  Solicitor  General. 

Now,  the  committee,  in  their  report,  clearly  show  the  nature 
of  the  rights  of  the  Hudson's  Bay  Company,  as  follows: 

"  The  territory  over  which  the  Company  now  exercise  rights 
is  of  three  descriptions — 

1st.  The  land  held  by  charter,  or  Rupert's  Land  ; 
2d.  The  land  held  by  license,  or  the  Indian  te»'"'tory; 
3d.  Vancouver's  island." 

It  is  the  second  head  of  rights,  namely,  the  land  held  by 
license,  or  the  Indian  territory,  in  which  is  comprehended  all 
right,  of  any  name  or  nature,  which  the  Hudson's  Bay  Company 
ever  possessed  in  Oregon  and  ^V.^shington.* 

Now,  it  conclusively  appears,  not  only  by  the  express  tenor 
of  the  committee's  report,  but  by  the  whole  body  of  its  evi- 
dence, and  of  the  documents  appended,  that,  in  the  so-called 
Indian  territory,  the  Company  h  :ld  nothing  but  license  to 
trade;  that  this  license,  granted  in  1838,  was  to  expire  by  its 


*\Ve  reprint  the  opinion  of  the  Altorne}'  and  Solicitor  General,  above  referred 
to,  and  also  the  committee's  lleport,,  in  the  ^iiipplement  and  Appendix. 

18 


138 


own  limitation  in  twenty-one  years;  and  that,  whatever  tlie 
Company  ditl,  wliatcver  it  acquired,  and  whutovcr  it  held,  it 
did,  acquired,  and  hchl  soltdy  and  exclusively  in  virtue  of  its 
terminable  license  to  trade,  as  granted  by  the  British  Crown. 

It  requires,  we  apprehend,  only  one  step  more  to  complete 
the  denn^.istration  of  the  true  character  of  the  rights  of  the 
Company  in  Oregon  and  AVashiiigton,  namely,  to  exhibit  the 
revocation  of  its  license  to  trade,  and  show  the  acts  of  illegal- 
ity and  usurpation  on  the  part  of  the  Company,  which  com- 
pelled and  hastened  the  revocation  of  its  license. 

The  revocation  is  a  Royal  Sigti  Manual,  dated  September 
2,  1858.     (Inserted  in  U.  S.  Misc.  Ev.,  p.  888.) 

Less  than  two  months  prior  to  the  date  of  this  Royal  Sign 
Manual,  it  became  the  duty  of  the  Minister  for  the  Colonies. 
Sir  Edward  Bulwer  Lytton,  to  adilrcss  to  the  commissioned 
governor  of  Vancouver  island,  an<l  governor  dc  facto  of  Brit- 
ish Columbia,  a  despatch,  containing  some  brief  instructions 
on  general  matters,  but  chiefly  devoted  to  commanding  that 
governor, — who,  as  it  happened,  was  the  Sir  James  Douglas  of 
the  Hudson's  Bay  Company,  whose  evidence  we  have  in  this 
record, — to  stop  the  scandalous  abuses  of  power  exercised 
under  his  eye  by  that  Company. 


We  quote  as  follows: 

"But  I  must  distinctly  warn  you  against  using  the  powers 
hereby  intrusted  to  you  in  maintenance  of  the  interests  of  the 
Hudson's  Bay  Company  in  the  territory. 

"The  Company  is  entitled,  under  its  existing  license,  to  the 
exclusive  trade  with  the  Indians,  and  possesses  no  other  right 
or  privilege  whatever. 

"It  is,  therefore,  contrary  to  law,  and  equally  contrary  to 
the  distinct  instructions  which  I  have  to  convey  to  you,  to  ex- 
clude any  class  of  persons  from  the  territory,  or  to  prevent 
any  importation  of  goods  into  it,  on  the  ground  of  a|»[)roliendcd 
interference  with  this  monopoly;  still  more,  to  make  any  gov- 
ernmental regulations  subservient  to  the  revenues  or  interests 
of  the  Company. 

"1  am  compelled,  therefore,  to  disapprove  and  to  disallow, 
if  still  in   force,  the  proclamation   of  which   your  despatch 


0  tllQ 

Iright 


ry  to 
|o  cx- 
n'cnt 
Hided 
gov- 
[rests 

jllow, 
)atch 


139 

transmitted  a  copy.  To  fit  out  boats  and  vessels  to  enter 
Frazer's  river  for  trade,  is  'no  infriiiifomcnt  of  the  Hudson's 
i>;iy  Company,'  as  that  proclamation  terms  it.  Such  infringe- 
ment only  couiinonces  when  any  trading  with  the  Indians  is 
attempted,  and  no  steps  can  rightfully  be  taken  to  put  a  stop 
to  legal  acts  of  this  description,  on  the  ground  that  they  may 
bo  intended  for  ulterior  purposes,  infringing  on  private  rights. 
For  the  same  reason,  to  re([uire  a  'license  from  the  Hudson's 
Bay  Company'  of  persons  landing  in  the  territory,  is  alto- 
gether uiijustifiablo. 

"I  am  obliged,  for  the  same  reason,  to  disapprove  of  the 
terms  which  you  have  proposed  to  the  Pacific  Mail  Company. 
They  ought  not  to  be  put  under  terms  to  'carry  the  Com- 
pany's goods  and  no  other;'  nor  ought  they  to  be  prevented 
from  carrying  persons  not  furnished  with  a  gold-miner's  license. 
Such  license  can  be  properly  required  of  intending  diggers 
on  the  ground,  but  not  of  persons  merel}''  seeking  to  land  on 
the  territory.  Still  less  have  the  Hudson's  Bay  Company  any 
right  whatever  to  '^xact  from  passengers  any  fee  or  head- 
money,  by  w'ay,  as  you  term  it,  of  'compensation.' 

"Siiould,  therefore,  the  Pacific  Mail  Company  have  assented 
to  these  terms,  I  must,  nevertheless,  require  their  being  altered, 
according  to  the  tenor  of  these  instructions,  for  the  future." 
U.  S.  Misc.  Ev.,  p.  280. 

Wo  trust  that  there  will  be  no  further  occasion  for  us  to 
recur  to  the  absurd  and  utterly  groundless  pretension  of  the 
Hudson's  Bay  Company,  to  having  any  granted  rights  in 
Oregon  or  Washington,  beyond  the  naked  license  of  trade 
■with  Indians  of  prescribed  and  definite  duration. 

IX.  Parliamentarij  investigation  of  the  Company. 

The  Hudson's  Bay  Company,  it  is  now  distinctly  perceived, 
is  a  corporation  invested  with  proprietary  rights  in  British 
America,  in  virtue  of  a  charter  from  the  Crown,  analogous  to 
the  charter  granted  in  the  same  reign  to  the  Duke  of  Albe- 
marle and  his  associates,  and  of  the  charter  granted  in  previ- 
ous reigns  to  the  Virginia  Company. 

But  these  last-mentioned  Companies,  like  the  great  propri- 
etary rights  of  William  Penn,  of  Oglethorpe,  and  of  Lord 
Baltimore,  were  designed,  both  by  the  Crown  and  the  grantees, 


140 


to  be  enterprises  of  colonization,  and  we  apprehend  that  on 
the  part  of  the  Crown,  at  least,  such  was  one  of  the  supposed 
objects  of  the  Hudson's  Bay  Company. 

That  Company,  however,  either  ascertained  or  imagined 
that  it  could  derive  more  profit  from  devoting  the  Crown  lands 
it  had  thus  acquired  to  the  prosecution  of  the  fur-trade. 

But  the  field  for  the  fur-trade  is  the  uninhabited  Avastes  of 
the  earth,  or,  at  any  rate,  those  portions  of  the  earth,  which 
are  but  imperfectly  occupied  by  human  beings  in  the  very 
primitive  stage  of  humanity,  savages  themselves,  and  the  fit 
companions  of  the  wild  beasts,  which,  in  common  with  them, 
wander  over,  rather  than  possess,  the  primeval  wildernesses. 

In  order,  therefore,  to  execute  its  projects,  it  was  necessary 
for  the  Company,  not  to  cultivate  the  lands  granted  to  them, 
but  to  cultivate  the  wild  beasts  thereon  ;  not  to  colonize,  but 
to  exclude  colonization:  in  a  word,  to  maintain  their  possess- 
ions in  the  condition  of  a  desert,  the  Indians  of  which  should 
be  the  hunters  and  thf  servants  of  the  Company. 

And  thus  it  was  that  the  possessions  of  the  Hudson's  Bay 
Company  have  continued  to  be,  from  that  day  to  this,  a  blank 
on  the  map  of  America. 

In  that  vast,  uninhabited  region,  the  Hudson's  Bay  Com- 
pany, while  they  were  but  the  proprietors  of  land,  possesssing 
at  least  no  exclusive  rights  of  navigation,  or  of  interior  trade, 
yet  contrived  to  keep  out  population,  and  so,  to  seem  to  be 
sovereign  lords  of  the  territory,  invested  with  prerogative 
powers. 

But  in  truth  they  possessed  no  such  powers.  To  pretend 
to  possess  them, — to  exercise  them,  in  fact, — was  mere  usurpa- 
tion ;  just  such  as  they  undertook  in  British  Columbia  at  a 
subsequent  day,  and  on  account  of  which  they  received,  as  we 
have  seen,  such  a  verte  semonce  from  the  British  Government, 
promptly  followed  by  the  clipping  of  their  wings  and  depriva- 
tion of  the  further  poAver  of  mischief  by  the  due  application 
of  a  lloyal  Sign  Manual. 

When  at  length  the  eyes  of  Great  Britain  and  of  the 
United  States  came  to  be  turned  toward  the  /ast  unoccupied 
region  of  this  continent,  in  and  west  of  the  Rocky  Mountains, 


141 


itcnd 
|urpa- 

at  a 
LS  we 
bent, 
[riva- 

ition 

the 
ipied 
lains, 


a  large  part  of  that  region  was  in   dispute  between   the  two 
Governnient.s. 

In  tlle^^e  circiuiistanccs,  the  liritish  (lovornineiit  adopted  a 
policy,  which,  whether  wise  or  not,  was  at  least  sagacious  and 
far-sighted  in  the  sense  of  the  object  which  Great  Ijritain  had 
in  view,  namely,  the  ultimate  appropriation  of  the  whole,  or 
of  as  large  a  part  as  possible,  of  that  magnificent  future  em- 
pire on  the  shores  of  the  Pacific  sea.  The  JJritish  Govern- 
ment granted  to  the  Hudson's  Bay  Company  a  license,  dated 
May  30,  1838,  "for  the  exclusive  privilege  of  trading  with 
the  Indians  in  all  such  parts  of  Nortii  America,  to  the  north- 
ward and  to  the  westward  of  the  lands  and  territories  belong- 
ing to  the  United  States  of  America,  as  should  not  form  part 
of  any  of  our  provinces  in  North  xVmerica,  or  of  any  lands 
or  territories  belonti;innr  to  the  said  United  States  of  America 
or  to' any  European  Government,  State,  or  Power." 
U.  S.  Misc.  Ev.,  p.  388. 

Here,  indeed,  was  no  charter  of  proprietorship,  nor  even  of 
colonization;  the  Company  did  not  receive 'grant  of  a  single 
rood  of  land,  and  still  less  of  a  single  atom  of  running  water; 
nor  of  any  exclusive  right  to  the  use  of  earth,  water,  light, 
or  air;  nor  any  rights  of  navigation;  but  the  sole  and  single 
right  to  exclusive  trade  Avith  Indians.  Nevertheless,  it  was  a 
charter  of  licensed  usurpation  and  pillage,  in  the  whole  of  the 
described  region  of  North  America. 

But  what  was  the  territory?  What  portion  of  America  did 
the  license  describe? 

All  the  world  knows, — it  is  undenied  and  undeniable, — that 
the  territory  described  is  that  which  by  treaty  between  Great 
Britain  and  the  United  States  had  been  previously  neutralized 
by  the  two  Governments,  and  in  consideration  of  which  it  had 
been  agreed  between  them,  that,  whilst  open  to  resitlence  on 
the  part  of  the  subjects  of  both,  it  should  not  be  exclusively 
occupied  by  either,  nor  its  land  be  susceptible  of  individual 
appropriation. 

The  British  Government  well  anticipated  that  the  Company 
would  scatter  its  posts  over  all  that  vast  region  ;  and  that  it 


142 


K; 


I 


n 


would  practicallj,  though  unlawfully,  to  the  extent  of  its 
moans,  o.vcliiile  o(jl()iiiz!itio)i,  and  ovon  comnicrco,  on  tlio  part 
of   citizens  of  the  United  States. 

And  so  it  proved,  to  the  consequence  of  so  much  indigna- 
tion in  the  United  States,  as  witliin  a  very  few  years  to  bring 
the  two  Governments  to  the  verv  verueof  war,  which  was  only 
averted  by  the  conclusion  of  the  treaty,  the  discussion  of 
which  constitutes  th.e  staple  of  the  j)resent  Argument. 

Already  it  has  been  sullieiently  demonstrated  by  us  that  the 
Hudson's  Bay  Company,  entering  Oregon  as  a  special  licensee 
only,  coulil  not  acquire,  and  did  not  acquire,  any  proprietary 
rights  there  whatsoever.  Presumptuous  as  the  Company 
always  has  been,  it  did  not  at  that  time  pretend  to  any  proprlc- 
tarij  rights,  but  only  to  certain  pos-'fessor//  rights,  the  same 
which  are  now  in  liti<j;ation  before  the  honorable  Coramis- 
sioners. 

Jjut  the  Hudson's  Bay  Company  could  not  suppress  its  desire 
to  do  something  in  the  way  of  the  usurpation  of  land-titles  :  in 
the  gratification  of  which  desire,  it  proceeded  at  different  times, 
between  April  27,  18-1:6,  and  April  5,  18 iO,  to  cause  its  ser- 
vants to  enter  donation  claims  in  the  territory  for  the  benefit 
of  the  Piiget's  Sound  Company,  (see  U.  S.  Misc.  Ev.,  p.  804, 
where  eighteen  of  these  fraudulent  transactions  are  recorded.) 
Dr.  Tolmie  was  himself  a  claimant  in  one  of  the  interests; 
and  the  party  participant  in  the  transfer  of  them  all  to  the 
Company.  And  thus  the  Hudson's  Bay  Company  assumes  to 
acquire  and  hold  proprietary  rights  through  the  medium  of  its 
outgrowth,  branch,  or  parasite,  the  I'uget's  Sound  Company, 
which  it  could  not  acquire  and  hohl  of  itself:  as  if,  by  agree- 
ment among  its  members,  and  a  little  trickery  with  its  servants, 
it  could  make  a  creature  superior  to  its  creator,  which  is 
contrary  to  Holy  Writ. 

Meanwhile,  as  time  passed  on,  the  people  of  Great  Britain, 
with  their  singular  aptitude  for  successful  colonization,  and 
the  people  of  Canada,  with  their  natural  solicitude  for  the 
development  of  all  the  resources  of  British  America,  of  which 
they  constitute  such  a  principal  part,  began  to  grow  restive  at 
the  perception  and  the  reflection  of  so  vast  a  region  of  British 


143 


'ants, 
ich   is 

jitain, 
I,  and 
|r  the 
ivhich 
Ivc  at 
'itish 


America  being  maintained  century  after  century  in  the  state 
of  wiMcrncHs,  for  the  single  purpose  of  gatliering  potty  divi- 
diMids  for  the  Ijcnofit  of  the  Hudson's  ]>;iy  Company. 

]Ic'reui)oii  folhnved  that  agitation  of  the  suhjcct  in  Enghvnd 
and  Canada,  of  whicli  the  evidences  appear  in  this  case. 

Tlie  imineiliate  result  was  a  parliamentary  in(|uiry,  con- 
ducterl  by  a  committee,  among  whose  names  we  find  those  of 
such  eminent  persons  as  Mr.  Secretary  Laboucliere,  Lord 
John  Russell,  Lord  Stanley,  Mr.  Edward  Ellioe,  Viscount 
Sandon,  Sir  John  Packington,  Mr.  (jr  lad  stone,  Mr.  Roebuck, 
^Ir.  Lowe,  and  Viscount  (Jodericli. 

Their  report  settled  the  fate  of  the  Hudson's  Bay  Company. 
Thenceforth  it  was  shorn  of  all  power  in  being  stripped  of  the 
mystery  which  had  so  long  shrouded  its  rights  and  its  acts. 
This  report  is  printed  in  the  ^Vppendix. 

The  revocation  of  its  extra  territorial  license  by  Sign  Man- 
ual followed  speedily  thereafter. 

Ceasing  to  be  a  power,  the  Company  was  metamorphosed 
into  a  common-place  denizen  of  the  stock  exchange,  by  the 
skillful  manipulations  of  the  International  Financial  Society. 

Its  destiny  now  is,  we  presume,  to  surrender  ere  long  its 
rights  to  the  Crown,  in  order  that  the  immense  territory,  which 
it  has  for  so  long  time  used  and  abused,  may  at  length  be 
opened  to  colonization  as  a  province. 

Its  younger  sister,  the  Russian  American  Company,  which 
liad  for  so  many  years  divided  with  it  the  sway  of  the  north- 
ern parts  of  the  continent  of  North  America,  has  already 
sunk  under  causes  of  decay  which  are  common  to  both.  These 
causes  are  well  explained  by  M.  Vattemare,  in  the  "  Revue 
Contemporaine,"  as  consisting  of  the  persistent  endeavor  of 
the  two  Companies  to  continue  their  fur-trade  monopoly,  in 
despite  of  their  respective  Governments. 

See  extracts  from   the  article  of  M.  Vattemare  in  the 
Appendix. 

We  suppose  the  Hudson's  Ray  Company  only  awaits  the 
termination  of  this  cause,  to  lie  down  and  expire  by  the  side 
of  the  Russian  American  Company.     liequieneat  in  pace. 


144 


X.  Exceptions  to  Evidence. 

In  the  course  of  the  examination  of  witnesses  on  both  sides, 
exceptiotis  were  frequently  made  and  noted,  either  to  the 
matter  or  the  form  of  interrogatories,  or  to  tiie  substance  of 
answers;  in  some  cases,  it  may  be,  with,  and  in  some  cases 
■without,  good  and  sufficient  cause. 

We  find,  on  revising  the  testimony,  that  the  discussion  of 
these  exceptions,  whether  for  the  purpr  o  of  defending  the 
legality  of  questions  put  by  the  Government,  or  of  answers 
received  to  questions  by  it,  or  for  maintaining  objections  taken 
by  it  tc  questions  or  answers  propounded  for  the  Company, 
would  require  great  labor,  consume  considerable  time,  and 
occupy  much  space,  but  would  not  carry  with  it  any  conse- 
quences of  moment,  either  to  the  United  States  or  to  the 
Company. 

To  take  evidence  by  depositions  is  in  general  a  tedious  and 
vexatious  task,  .alike  to  counsel,  to  witnesses,  and  to  commis- 
sioner, and  especially  to  counsel,  whose  patience  is  prone  to 
give  way  under  such  unfavorable  circumstances. 

Thus  it  happens  that  while  both  parties  are  seeking,  in  good 
faith,  to  bring  out,  in  a  competent  form,  the  facts  it  deems 
material,  yet  each  fails  to  do  so,  or  conceives  that  the  other 
fails  to  do  so,  and  exceptions  multiply. 

Of  all  this  the  Commissioners  will  judge.  Questions  or 
answers,  which  they  deem  illegal, — statements  by  witnesses, 
which  may  appear  to  be  incompetent,  for  want  of  knowledge, 
or  as  being  mere  opinions  in  the  place  of  facts, — the  Commis- 
sioners will  reject  or  disregard. 

As  to  all  the  matters  of  controversy,  there  is  so  large  a 
body  of  evidence  on  both  sides,  and  so  much  of  it  is  merely 
cumulative,  and  there  is  so  much  of  unexceptionable  evidence 
on  main  points,  that  neither  party  incurs  any  hazard  by  the 
reception  or  rejection  of  any  particular  parcel  of  testimony. 

Besides  which,  whilst,  in  a  cause  like  this,  great  liberality  in 
the  reception  of  evidence  seems  to  be  desirable,  so  also,  with 
a  tribunal  like  this,  any  evidence,  which  either  party  in  good 


145 


K>s  or 
esses, 
ledge, 

immis- 


Irge  a 

lerely 

idence 

ly  the 

lony. 

|ityin 

with 

[good 


faith  tliinks  itnportant  to  him,  may  well  be  submitted  to  the 
court. 

If  disposed  to  criticize  evidence  in  matter  or  form,  we  shouhl 
move  to  strilce  out  the  entire  mass  of  opinions  for  the  Com- 
pany on  tlie  subject  of  values,  seeing  that  such  opinions  are 
but  secondary  evidence  in  the  absence  of  book-accounts  ;  that 
few  of  the  witnesses,  whose  opinions  are  thus  put  in,  have  any 
pretension  to  be  deemed  experts  ;  and  that  the  Company,  while 
confessing  that  it  has  in  its  possession  the  original  books  of 
cost  and  expenditure,  pertinaciously  refuses  to  produce  them, 
and  suppresses  the  true  and  only  competent  evidence  of  the 
controverted  facts. 

We  have  )»estowcd  some  reflections  on  this  topic,  in  the 
proper  place;  and  we  now  here,  in  this  relation,  adjure  the 
Commissioners  to  reject  and  discard  every  answer  of  the  Com- 
pany's witnesses,  every  statement  or  document,  which  under- 
takes to  prove  value  as  opinion  merely,  without  being  controlled 
by  the  proper  accounts  of  expenditure. 

All  these  observations  apply  to  the  documents  filed  by  the 
Company,  as  well  as  to  its  oral  testimony.  Counsel  on  both 
sides  have  agreed  not  to  exact  technical  proof  of  the  authen- 
ticity of  documents,  in  the  absence  of  any  special  cause  of 
suspicion  :  sul)ject  to  which  understanding,  we  consign  the 
whole  matter  to  the  discretion  and  judgment  of  the  Commis- 
sioners. 

XI.  Photographs,  3Iaps,  and  Plates. 

The  United  States,  in  consideration  of  the  highly  ornamen- 
tal descriptions  of  the  witnesses  of  the  Hudson's  Bay  Company, 
in  speaking  of  the  structures  at  some  of  their  posts,  and  in 
consideration  of  the  exair^erated  value  attributed  to  the  same, 
have  procured  a  numljer  of  photographs  of  such  structures, 
including,  of  course,  views  more  or  less  exiensive  of  the  adja- 
cent country. 

Such  representations  of  objects  are  infinitely  more  instruct- 
ive and  satisfactory  than  the  most  perfect  oral  description. 
Horace,  willi  his  accustomed  curiosa  fdicitas,  well  says  : 


19 


Segnius  irritant  anitnos  clemissa  per  aures 
Quam  qufB  oculis  subjecta  fidelibus. 


14G 


Who,  in  purchasinf];  an  extensive  farm  and  favm-liouso,  or 
a  costl}'  cdKice,  at  a  very  lav^c  cstiniattMl  pricu',  wouM  be  con- 
tent to  buy  on  the  faith  of  the  extravagant  (IcscriptioM  of  an 
auctioneer  or  other  agent  of  the  vendor?  If  the  ])roposed 
vendee  cannot,  by  liinisclf  or  agent,  visit  the  property 
to  be  sold,  the  next  best  thing  fur  him  is  to  inspect  piioto- 
graphs  of  it,  in  which  the  object  paints  itself  with  miraculous 
precision  and  certainty,  and  in  a  form  admitting  of  indefinite 
multiplication  of  copies.  And  such  is  the  information  regard- 
ing many  of  the  structures  of  the  Company,  which  wc  propose 
to  submit  to  the  Commissioners. 

The  photograph,  marked  United  States  Photographs  No. 
3,  exhibits  a  direct  view  of  the  much-vaunted  buildings  at 
Fort  Vancouver,  for  the  better  intelligence  of  which,  com- 
parison should  be  had  with  United  States  Photographs  No. 
3i,  representing  the  camp  of  the  British  Boundary  Commis- 
sioners at  Fort  Vancouver. 

The  photograph  entitled  United  States  Photographs  No.  G 
presents  a  bird's-eye  view  of  Fort  A^ancouver,  copieil  from  a 
lithograph  in  Pacific  Railroad  Reports,  vol.  12,  Pt.  I. 

By  means  of  these  photograpiis,  it  is  plain  to  see  not  only 
the  buildings  themselves,  but  the  enclosed  grounds,  and  the 
relation  of  the  whole  to  the  river  Columbia. 

Photographs  Nos.  3  and  3J-  are  verified  by  General  Alvord. 
No.  3,  being  the  northeast  corner  of  the  stockade  viewed 
from  the  inside,  and  embracing  the  officers'  quarters  at  the 
one  side  and  that  of  the  servants  at  the  other,  constitutes  the 
most  favorable  exhibition  possible  of  the  best  of  the  inhabited 
structures  at  Fort  Vancouver.     U.  S.  Ev.,  Pt.  II,  p.  352. 

No.  3|,  which  the  Boundary  Commissioners  occupied  for  a 
time,  represents  the  northwest  corner  of  tlie  stockade,  em- 
bracing the  principal  store,  and  here,  of  course,  we  have  a 
representation  of  the  best  of  the  commercial  structures. 
(General  Alvord,  ibidem.) 

These  two  photographs  are  also  botli  identified  by  G.  Gibbs, 
(U.  S.  Ev.,  Pt.  II,  pp.  41-2  and  521.)    . 

It  needs  only  to  cast  the  most  cursory  glance  at  these  edi- 
fices, as  thus  photographed,  to  see  bow  false  are  the  descriptions 


147 


th( 


'ord. 

;\ve(l 
tlic 
the 

Ited 


[or  a 

om- 

Ive  a 

ires. 


bbs 


[Clll- 

iions 


and  estimations  of  tlic  officors  and  servants  of  the  Company 
ill  this  respect,  and  how  just  and  correct  are  tiiosc  of  the 
witnesses  for  the  United  States. 

In  No.  G  we  discern  not  only  tlio  stochade  and  its  enclosed 
edifices  near  the  river,  and  the  scattered  huts  and  small  houses 
further  hack  from  the  river,  but  also  the  important  mission 
buildings,  and  other  small  dwellings  on  the  edge  of  the  woods 
— these  dwellings  belong  in  part  to  private  persons — by  the 
inspection  of  which  we  shall  see  not  only  the  orditiary  char- 
acter of  the  structures  of  the  Company,  but  also  shall  gather 
some  idea  of  the  visionary  city  of  Vancouver. 

Photograph  No.  1  represents  that  which  is  called  in  the 
testimony  a  "church,"  but  which  is  in  fact  only  a  very  hum- 
ble mission-house,  at  the  post  of  Kootenay. 

This  photograph  is  identified  by  A.  and  C.  T.  Gardner.  (U. 
S.  Ev.,  rt.  ir,  p.  320  and  322,)  by  Hudson,  {Ibid,  p.  340,)  by 
Gibbs,  [Ibid,  p.  407,)  and  by  Alden,  {Ibid,  p.  852.) 

This  building,  as  we  plainly  see  by  the  photographs,  con- 
sists on  the  sides  of  six  tiers  of  unhewn  logs  cut  in  the  neigh- 
boring  forest,  and  is  testified  to  be  double  the  size  of  the  only 
inhabited  building  at  the  post  belonging  to  the  Com  any,  that 
occupied  by  Linklator. 

Photograph  No.  2  represents  wliatever  there  is  of  most 
value  in  the  structures  of  the  Company  at  the  Fort  denomi- 
nated Fort  Colvile.  It  is  identified  by  G.  C.  Gardner,  (U. 
S.  Ev.,  Pt.  II,  pp.  194,  197-90,)  and  by  A.  J.  Cain,  {Ibid,  pp. 
225  and  230  ) 

Photograph  No.  3,  which  is  a  view  from  Fort  Colvile,  look- 
inji  across  the  Columbia,  affords  instruction  reixarditij;  the 
face  of  the  country,  as  well  as  the  ordinary  style  of  buildings 
therein  at  the  time  under  consideration. 

Photograph  No.  9  is  a  representation  of  the  Company's 
mill  near  Fort  Colvile,  the  sight  of  which  suffices  to  dispel 
the  illusory  valuations  thereof  made  by  the  oflTicers  and  ser- 
vants of  the  Company.  It  is  copied  from  the  Pacific  Railroad 
Reports,  vol.  12,  Pt.  I. 

Photograph  No.  4  consists  of  an  exterior  and  interior  view 
of  Fort  Hall,  copied  from  the  report  of  Major  Cross,  U.  S.  A., 


148 


to  the  Quartermaster  (icneral,  contained  in  the  latter's  re- 
port of  .luno  ."jOtli,  1850,  as  communicated  to  C!')M;L;re.ss. 

I'liotograph  No.  a  C(jnsi.sts  in  like  manner  of  views  of  tlio 
interior  and  exterior  of  Fort  lioise,  copied  from  pliotographs 
in  the  last  above  mentioned  report. 

Each  of  these  photographs  serves  to  contradict  unanswer- 
ably the  testimony  of  the  agents  of  the  Company  respecting 
the  same,  and  to  substantiate  that  of  the  witnesses  for  the 
United  States. 

Photograph  No.  7  represents  Fort  Walla-Walla,  copied  from 
the  above-cited  volume  of  the  Pacific  Railroad  Reports. 

Great  effort  was  made  by  the  counsel  for  the  Hudson's  Bay 
Company,  who  cross-examined  witnesses  of  the  United  States 
on  the  subject  of  Walla-Walla,  to  endeavor  to  make  out  won- 
derful value,  both  of  buildings  and  of  site.  This  photograph 
fully  substantiates  the  testimony  of  the  United  States. 

Finally,  we  have,  in  Photograph  No.  8,  a  correct  exhibition 
of  the  adobe  structures  at  Fort  Okanagan,  copied  from  the 
same  volume  of  Railroad  Reports.  For  these  mud-hovels,  the 
Company  claims  i;2,500,  while  the  witnesses  of  the  United 
States  testify  that  they  are  not  worth  more  than  $500.  That 
is  to  say,  the  Company  claims  for  these  buildings  about 
twenty-five  times  their  value,  as  represented  by  witnesses  of 
the  United  States. 

By  looking  at  this  photograph,  the  Commissioners  have 
opportunity  to  perceive  not  only  the  extravagant  exaggera- 
tion of  the  claim  founded  on  Fort  Okanagan,  but  also,  infer- 
entially,  in  regard  to  all  the  other  posts  of  the  Company. 

The  Government  also  files  a  number  of  maps  and  plats. 

No.  1  is  a  copy  of  the  preliminary  Coast  Survey  chart  of 
the  mouth  of  the  river  Columbia.  Here  we  see  the  position 
of  Astoria,  as  referred  to  in  various  parts  of  the  evidence; 
also.  Point  Adams;  also,  Cape  Disappointment. 

This  map  is  verified,  and  the  notable  points  upon  it  are  in- 
dicated by  W.  B.  McMurtrie.     (U.  S.  Ev.,  Pt.  II,  p.  371.) 

No.  5  is  a  special  map  of  a  portion  of  the  mouth  of  the 
river,  with  particular  reference  to  Cape  Disappointment,  pre- 
pared by  Capt.  Van  Buren,  from  authorities  in  the  Engineer 


149 


tUo 


•t  of 
lition 
|nce ; 

Ic  in- 

1) 

the 

ipre- 
ineer 


Dppnrttnont.     The  basis  of  it  is  ii  survey  tnado  by  Mr.  Ogden, 
cliit'l'  t'aclMi-  of  tli(>  IliulsMii's  Day  Coiiiftany. 

Also,  the  objects  \\\)i)U  it  are  fully  explained  by  Mv.  Mc- 
jSIurtrie,  (U.  S.  Ev.,  Vt.  II,  p.  :J71,)  and  by  Capt.  Van  JUiren, 
(U.  S.  Ev.,  Misc.,  p.  o<J7.)     Seo  also  W.  Uib.son,  L".  IS.  Ev., 

Pt.  Ill,  )>.  niT. 

No.  11  is  a  copy  of  the  Coast  Survey  rcconnoissance  of 
Steilacooni  harbor.  It  is  the  subject  of  evidence  and  expla- 
nation by  Mr.  McMurtrie  of  the  Coast  Survey  in  U.  S.  I'uget 
S.  Ev.,  p.  :20G. 

Nos.  2  and  o  are  land  olTice  maps  of  Oregon  and  of  Wash- 
ington, duly  certified  by  the  Commissioner  of  I'ulilic  Lands. 
These  maps,  while  serving  to  siiow  the  {)rogrcss  of  public  sur- 
veys to  the  time  of  their  respective  dates,  are  also  convenient 
for  consultation  in  reference  to  many  of  the  localities  men- 
tioned in  the  evidence  before  the  Commissioners. 

No.  G  is  a  plat  cojdetl  from  files  in  the  Land  Office  certified 
by  the  Commissionei",  and  representing  the  Hudson's  Bay  Coui- 
pany's  claim  at  Fort  Vancouver,  as  described  in  a  letter  from 
chief  factor  Ballenden,  in  18.32,  to  Mr.  Preston,  surveyor 
general  of  the  territory  of  Oregon. 

This  map  requires  to  be  consulted  in  studying  the  question 
•whether  of  the  pretended  or  of  the  true  limits  of  the  claim  of 
the  Hudson's  Bay  Company. 

The  map  is  of  particular  interest  in  controlling  the  evid- 
ence of  Mr.  Mactavish.  (See  the  letter  of  acting  Commissioner 
Whitney  to  Surveyor  General  Tilton.   U.  S.  Miss.  Ev.,  p.  2Go.) 

No.  8  is  a  map  of  the  military  department  of  Oregon,  pre- 
pared at  the  VV'ar  Department,  and  will  be  convenient  to  the 
Commissioners  in  aftbrding  a  general  view  of  the  geography 
of  the  entir*^*  region  of  country  concerned  with  the  enquiries 
of  the  Commission. 

No.  10  is  a  British  map  of  the  same  region  of  country  as 
the  preceding,  copied  from  one  of  the  Parliamentary  Blue 
Books. 

Portions  of  this  map  are  obscured  by  the  colored  lines  upon 
the  original,  which,  in  the  process  of  transfer  by  sunliirht. 
have    been    converted    into    deep  dark-colored     lines.      The 


150 


strai<:;ht  line  is  but  the  boundary-line  of  the  49th  parallel  of 
latitude,  and  the  curve-lines  are  delineations  of  the  eoasts  of 
the  ocean,  bays,  and  straits. 

The  particular  utility  of  this  map  is  in  illustrating  the  evi- 
dence respecting  the  position  of  Fort  Colvile,  and  the  Flat- 
Head  and  Kootenay  Fo-  s. 

Finally,  we  have  two  maps  to  illustrate  the  relation  of  the 
public  reserve  at  Fort  Vancouver  to  the  Hudson's  Bay 
Company. 

Xo.  4  was  drawn  by  Lieut.  Stuart,  in  1850.  It  is  explana- 
tory of  a  notice  declaring  the  reservation,  issued  at  the  time 
by  Col.  Loring,  commanding  the  military  department.  (See 
U.  S.  Misc.  Ev.,  308.) 

The  reservation,  be  it  observe  1,  saves  all  the  rights  of  the 
Hudson's  Uay  Company. 

No.  2  is  the  military  reservation  at  the  same  place,  as  sur- 
vey cvl  in  185l>,  under  direction  of  Gen.  Harney. 

In  order  to  the  better  understanding  of  this  map,  it  is  woU 
to  compare  with  it  the  photograph  No.  0,  exhibiting  a  bird's- 
eye  view  of  Fort  Vancouver. 


(F.) —  Conclusion. 


Having  thus  dismissed  at  length  all  such  questions  of  fact, 
or  of  law,  as  it  seemed  necessary,  in  the  interest  of  tiie  United 
States,  to  considei,  it  only  remaitis  for  us,  in  tlie  way  of  re- 
trospect, or  rcsiunc,  to  state  the  propositions  which,  in  one 
form  or  another,  constitute  the  basis  of  this  ar<;utnent. 

1.  The  Hudson's  Bay  Company  is  the  chartered  proprietor 
of  the  territory  of  Rupert's  Lan<l., 

2.  Within  its  chartered  limits,  the  Company  was  invested 
in  fact,  though  by  doubtful  legality,  with  the  quality  of  owner 
of  the  soil,  including  such  proprietary  rights  as  appertain  to 
a  grantee  under  the  Crown. 

3.  Within  its  chartered  limits,  even,  however,  the  C'^mpanj 
does  not  possess  the  functions  of  sovereignty,  or  prerogative 
powers  of  <any  deicrirtion. 

4.  Whether  or  not,  within  those  limits,  the  Company  enjoys 


F  fact, 
:iitc(l 
of  ro- 
ll   one 

)vietor 

"osted 
lowlier 
lain  to 


151 

any  rirrhts  of  exclusive  trade, — and  if  perchance,  by  letter  of 
charter,  it  holds  any  such, — it  is  destitute  of  any  legnl  means 
for  their  enforcement,  and  they  cannot  be  rightfully  main- 
tained. 

5.  These  arc  the  ancient  rights  of  the  Company;  but  by 
recent  especial  grant,  it  exercises  or  possesses  some  particular 
rights,  immaterial  here,  within  British  Columbia. 

G.  This  Company,  in  the  year  1888,  while  the  territory  now 
constituted  as  the  Htate  of  Oregon  and  territory  of  Vv^ashington, 
•was  in  litigation  between  <ireat  JJritain  and  the  United  States, 
entered  therein,  under  and  by  virtue  of  a  license  from  the 
British  Crown  for  the  exclusive  trade  with  the  Indians  thereof. 

7.  This  license  by  the  British  Crown  was,  in  spirit  and  effect, 
if  not  intention,  an  act  of  semi-hostility  toward  the  United 
States,  being  contrary  to  the  true  construction  of  the  conven- 
tion rejiulatini;  the  respective  ad  ('nterim  ri -hts  of  the  two 
Powers  in  the  disputed  territoi-y. 

8.  Jjut  the  license,  in  so  far  as  it  professed  to  grant  privi- 
leges of  exclusive  trade  with  Indians,  could  only  operate  against 
British  subjects,  and  was  nugatory  as  respects  citizens  of  the 
United  States. 

9.  The  license  did  not  profess  to  grant  to  the  Company  any 
exclusive  v\<A\t  of  navi^atinn;  the  waters  of  the  territorv  :  the 
said  wat  ,rs  continued  to  be  free  aud  open  high. ways,  at  least 
to  all  citiv.c^Mis  of  the  United  States. 

Sec,  in  confirmation  of  the  preceding  points,  in  addition  to 
authorities  and  arguments  previously  presented,  the  memorial 
of  the  Hudson's  Bay  Company,  on  the  showing  of  which  the 
license  was  granted  by  Lord  Glenelg,  and  the  license  itself,  in 
the  Appendix,  Nos.  7  and  8. 

See,  also,  in  the  Appendix,  extracts,  of  the  same  period,  from 
lettf^i's  of  Sir  John  Belly  and  Sir  George  Simpson,  exhibiting 
the  inducements  of  aggression,  usurpation,  and  hostility,  as 


respects  the  United  States  and  the  Russian  Einpire,  l^y  wincii 

ipany 

the  Company  then    professed  to  be  goveriuMl  ;uid  guided,  and 

^ative 

which  constituted  the  avowed  objects  of  its  jn'etension  to  favor 

froui  the  British   Govurnment. 

njoys 

i 


i'S* 


Et'«! 


li 


r 

i 


152 

10.  The  Company  could  not,  and  did  not,  acquire  any  pos- 
sessory rif/hts,  as  distinguished  from  mere  common  use,  in  the 
trade  of  said  territory  or  in  its  navigable  waters. 

11.  Tiie  license  did  not  confer  on  the  Company  any  proprie- 
tary rights  in  said  territory:  if  it  had  professdl  to  do  so,  the 
grant  would  have  heen  null  and  void.  It  was  legally  impossi- 
ble for  the  Company  to  become  the  owner  of  any  land  there, 
in  view  of  the  peremptory  prohibition  of  the  treaty  regulat- 
ing the  relations  of  the  two  Powers. 

12.  Under  its  license,  the  Company  lield,  for  a  term  of  years, 
certain  rights  against  the  British  Crown,  which,  whether  or 
not  entitled  to  be  denominated  possessory  rights,  would  expire 
absolutely,  by  reason  of  their  legal  quality  and  their  intrinsic 
nature,  with  the  termination  of  the  license. 

13.  That  license,  in  so  far  as  regards  any  effect  it  might 
have,  or  any  conse(iuences  relatively  to  the  United  States, 
expired  with  the  local  power  of  the  licensor,  namely,  on  the 
conclusion,  in  184G,  of  the  joint  occupancy  of  the  two  Gov- 
ernments, and  the  devolution  of  the  territory  to  the  United 
(States. 

14.  The  United  States  does  not  hold  the  dominion  aiid  sov- 
ereignty of  Oregon  and  Washington  in  virtue  of  any  cession 
bv  Great  Britain,  but  in  virtue  of  original  and  antecedent 
right, recognized  as  such  by  Great  Britain. 

The  United  States  were  sovereign  Je  jure  during  the  joint 
occupation,  although  exercise  of  such  sovereignty,  in  fact, 
was  for  a  time  partially  suspended  or  '■  ^Id  in  abeyance  by 
convention. 

1").  Whatever  claim,  if  any,  the  Hudson's  Bay  Company 
(including  the  Puget's  Sound  Agricultural  Company)  holds 
against  the  United  States,  it  holds  by  grace  and  favor,  under 
the  treaty  dissolving  the  joint  occupation  of  the  two  Powers, 
and  not  otherwise. 

10.  The  sole  premises  of  such  claim  are  in  the  voluntary 
engagement  of  the  United  States  to  protect  the  possessory 
rights,  if  any,  belonging  to  the  Company. 

IT.   Such  possessory  riitlil.-*,  in  any  the  largest  possible  legal 


I  sov- 
jssion 
jedcnt 

joint 

fact, 

CO  by 

ipany 
holds 
in  (I or 
hvcrs, 

[ntary 
issory 


I  legal 


153 

or  equitable  construction  thereof,  could  only  rest  in  fixed  and 
valuable  improvements  on  land,  whereof  the  fee  simple,  as  well 
as  the  sovereignty,  had  always  been  and  still  was  continuously 
in  the  United  States. 

18.  All  other  rights,  which  the  Company  might  have  had, 
if  any,  within  the  territory,  ceased  to  exist  on  the  termi- 
nation of  the  joint  occupancy  :  they  became  a  nonentity,  and, 
of  course,  not  existing,  they  were  incapable  of  being  protected, 
and  could  not  have  been  intended  or  comprehended  by  the 
treaty  as  possessory  rights. 

19.  Reducing,  then,  the  possessory  rights  of  the  Company 
to  their  true  proportion,  as  improvements  made  on  the  land 
of  another  by  a  tenant  at  suflfrrance  or  a  licensee,  therefore, 
on  his  leaving  the  land,  the  ordinary  rules  of  law  apply  to 
the  question  of  the  value  of  such  improvements. 

20.  By  no  conceivable  rule  of  right,  by  ro  doctrine  of  jus- 
tice, to  be  found  in  public  or  private  law,  or  in  the  construc- 
tion of  treaties,  or  in  international  jurisprudence,  has  the 
Company  here  any  claim  to  the  fee  of  land,  or  indemnification 
for  being  dispossessed  thereof,  or  consideration  for  the  transfer 
of  the  same  to  the  United  States. 

The  fee  simple  belongs  now,  as  it  always  did  belong,  to  the 
United  States,  and  cannot  pass  to  its  owner  by  transfer  from 
the  Company,  which  is  not  its  owner. 

21.  The  Hudson's  Bay  Company,  including  the  Puget's 
Sound  Company,  has  no  pretension  of  right  to  indemnification 
by  the  United  States  for  cattle,  hr rses,  or  sheep  injured  or 
destroyed  by  private  persons,  or  for  any  damage  done  to  its 
improvements  by  such  persons:  for  the  redress  of  such  wrongs 
the  courts  of  justice  in  Oregon  and  Washington  were  open  to 
the  Company,  as  to  all  other  inhabitants  of  or  sojourners  in 
the  United  States. 

22.  As  the  fee  simple  of  any  and  all  lands  ever  occupied  by 
the  Company  belongs  to  the  United  States,  and  as  all  preten- 
sion of  right  of  continued  occupation  by  the  licensee  Company 
expired  with  the  power  of  the  licensor  Government,  or,  at 
the  latest  possible  day,  on  the  revocation  of  the  license  by  the 

licensor,  the  Company  has  no  interest  in  any  prospective  value 
20 


/ 


154 


in 


of  the  land  by  reason  of  the  act  lai  or  contingent  location  of 
railroads,  or  the  actual  or  contingent  foundation  of  cities  or 
towns: — all  claims  founded  thereon  are  groundless  and  false  : 
the  Company  has  no  claims  in  this  behalf  beyond  the  actual 
value  of  itr,  own  improvements. 

Wc  make  the  point  distinctly,  because  misapprehension  in 
ibis  respect  is  the  excuse  for  most  of  the  extravagant  estima- 
tions of  value  by  witnesses  for  the  Company. 

Compare,  for  example,  the  opinion  of  one  of  the  witnesses, 
(AV.  11.  Farrar,)  in  II.  B.  Co.'s  Ev.,  p.  251,  witli  the  explana- 
tion and  contradiction  thereof  by  the  same  witness,  in  U.  S. 
Misc.  Ev.,  p.  183. 

23.  The  Company  has  no  equities  to  set  up  ;  it  has  abused 
all  its  rights;  it  has  been  guilty  of  numerous  acts  of  usurpa- 
tion; it  has  been,  and  is,  a  mere  incumbrance  and  dead-weight 
on  the  British  Provinces,  by  reason  of  its  anti-colonization 
policy  ;  it  wrongfully  engrossed  and  monopolized  for  a  series 
of  years  the  commerce  and  production  of  Oregon  and  Wash- 
ington, committing  strip  and  waste  there  at  will,  pasturing  its 
herds  on  the  public  domain,  cutting  and  exporting  timber, 
and  otherwise  acting  as  universal  owner,  greatly  ♦'o  its  ad- 
vantage and  to  the  injury  of  the  United  States  ;  and  its  claims 
are  to  be  measured  by  no  rules  but  those  o^  (^trktit^simuni.  jus. 

24.  As  full  satisfaction  of  all  the  just  claims  of  the  Com- 
pany, and  as  adequate  compensation  for  the  transfer  of  its 
rights  to  the  United  States,  including  those  of  the  Puget's 
Sound  Company,  an  ample  sum  (.$300,000)  was  proposed  by 
Governor  Stevens. 

Governor  Stevens  exhibits  in  detail  the  elements  of  his 
estimation. 

We  possess  evidence  from  the  Company  which  strikingly 
confirms  his  estimate.  It  is  the  onumerotioii  of  all. the  estab- 
lishments of  the  Company,  which  v.'o  find  appended  to  the 
reports  of  the  House  of  Commons'  committee,  p.  3G5. 

This  document  bears  unimpeachable  testimony  to  the  fraud- 
ulent exaggeration  of  values  attached  by  the  Company  to  its 
assumed  rights  in  Orefjron  and  Washington. 

The  total  number  of  all  the  posts  or  establishments  of  the 


15') 


lof  liis 

dngly 
Icstab- 

to   the 

ttVand- 

to  its 

)f  the 


Company  at  the  date  of  that  enumeration  (ISofJ)  was  one  Inm- 
dred  and  fifty-four. 

Many  of  them  arc  of  greater  magnitude  and  importance 
tlian  Fort  Vancouver.  We  shall  do  no  injustice  to  the  Com- 
pany in  averar/lnr/  all  tliese  posts,  for  the  purpose  of  cstiinat- 
in<j  ainxrcicato  and  comparative  values.  Tin'  ll><i  includes  i\7s- 
cjvalJii  and  CowUtz,  act  do/ru  as  cutatd/'shuieut.s  of  the  Ifinhoii's 
Bnif  Cnrnpanji. 

Deducting  from  the  sum  total  the  posts  in  Oregon  and  Wash- 
ington, sixteen  in  number,  (Cowlitz  appearing  twice  in  the 
memorials,)  the  balance  of  one  hundred  and  thirty-eight  rep- 
resents the  other  posts  of  the  Company. 

Now,  by  rule  of  proportion,  if  the  1(1  posts  within  the  I'nitcd 
States  are  of  the  value  of.  say,  £1,000,000,  (the  claim  is  Xt,- 
025. o80.)  then  the  roaainiii;/  posts  (138)  are  of  the  value  of 
.£S, 025, 000.  This  result  does  not  include  com)iierci(d  assets, 
such  as  ships,  merchandise,  pelts,  and  cash  on  hand,  as  per 
the  cxliibits  of  the  International  Financial  Society.  Adding 
those,  and  aduling  the  present  claims,  we  should  roach  the  re- 
sult, not  of  £1,500,000,  but  of  nearly  £12,000,000!!  as  the 
actual  value  of  the  property  of  the  Hudson's  IJay  Company. 

Let  us  now  reverse  the  terms  of  the  proportion.  Take,  ac- 
cording to  the  appraisement  of  the  Company's  property  on  sale 
to  the  Financial  Society,  XI, 500,000  as  the  value  of  the  entire 
property;  deduct,  say,  £500,000  for  cash,  ships,  merchandise, 
and  pelts,  (which  is  a  deduction  much  below  the  probable 
truth,)  and  there  remains  XI, 000, 000  as  thofidl  value  of  all 
the  territorial  rights  and  7'eal  estate  of  the  Company. 

If  1(U  posts,  averaged,  be  worth  £1,000,000,  then  It)  of  these, 
taken  at  hazard, can  be  worth  only  COT, 5(10, — say  >^407,800  for 
all  the  [)osts  in  Oregon  and  Washington. 

]jut  still,  even  that  reduced  sum  will  be  grcatl;.'  in  excess ;  for 
we  did  not  make  any  deduction  from  the  £1,000,000  of  assumcMl 
total  real  estate  for  the  territorial  rights  of  ilu-  (Jompany  : 
they  wore  left  included,  llow  much  ouglit  we  to  allow  for 
them  'i  On  the  lowest  calculation  we  have  bet-u  able  to  make 
of  them,  they  stand,  in  the  Company's  appraisement,  at 
X47G,4jJ1.  (See  supra,  p.  112.) 


i  I .).  ,.i««ii;f.i  jt"»»»*».-« 


156 


%mi 


,11; 
1- 

i 


£9 


W-'^ 


If,  now,  we  deduct  this  from  the  assumed  .£1,000,000,  wc  re- 
duce it  nearly  one  half,  and  the  result  Avill  approximate  to, 
say,  $250,000;  which  in  our  judgment  is  a  large  estimation  of 
the  value  of  the  rights  of  the  two  Companies,  and  substan- 
tiates the  favorableuess  of  the  calculation  of  Governor  Stev- 
ens. 

25.  When  the  British  Government  undertook  to  negotiate 
this  matter,  the  sum  which  it  proposed,  ($500,000),  was  greatly 
in  excess  of  any  just  valuation  of  the  rights  of  the  two  Com- 
panies. 

26.  The  sum  previously  proposed  by  Sir  John  Pelly  ($700,- 
000)  was  still  more  largely  in  excess  of  any  such  just  valuation. 

27.  When  Sir  George  Simpson  undertook  to  value  the 
claims  of  the  two  Companies  at  §1,000,000,  the  claims  passed 
out  of  the  domain  of  reason  or  justice,  and  sank  into  the 
category  of  fraudulent  excess  and  attempted  extortion. 

28.  And,  finally,  in  the  present  aspect  of  the  claims  of  the 
two  Companies,  as  they  stand  before  the  Commissioners,  and  as 
tested  by  the  evidence  in  the  record,  those  claims,  over-stated 
and  exaggerated  as  they  are,  by  interested  witnesses,  to  millions 
in  amount, must  of  necessity  be  characterized  as  a  mere  specu- 
lative adventure  under  the  International  Financial  Society's 
auspices,  of  audacious  and  stupendous  fraud  against  the  Gov- 
ernment of  the  United  States. 

All  of  which  is  respectfully  submitted,  by 

0.  CusHir?a, 
Counsel  for  the  Unitii  States. 


